Oregon Personal Injury Lawyer Blog

Pregnancy counselors offer Chorionic Villus Sampling as a way to determine whether a fetus is likely to have Downs Syndrome. CVS is an alternative to amniocentesis. Some prefer CVS to Amnio because CVS can be performed earlier in the pregnancy, typically at 10 to 12 weeks compared to 15 to 18 weeks. Whether to undergo chorionic villus sampling is a sensitive decision that should be made only after full consideration of the risks and benefits. I became familiar with the procedure as an attorney representing children born with missing fingers and missing toes and hemangiomas, which, we believed were caused by CVS procedures that occurred in Portland, Oregon.

Sometimes, patients and doctors consider procedures too lightly. In the case of CVS and Amnio, some counselors just tell the women, "at your age, you should probably have chorionic villus sampling or amniocentesis." But that should be just the start of the conversation, not a box to check on a consent form. Here are some of the things that the counselors should walk you through.

What is the benefit?

You must determine what are YOUR risks that YOUR baby will have Downs Syndrome or some other genetic anomaly that the test will identify. More importantly, what would you if the test showed an anomaly? The only purpose for any medical test to obtain information that you will act upon. If there are no actions you can or would take based upon the results, then don't take the test. Counselors should review this with you, I believe. CVS became popular because it offered results in the first trimester, which meant an abortion could then occur in the first trimester, if so desired.

What are the risks?

Medical knowledge changes rapidly. Early studies indicated a correlation between CVS and "transverse limb anomalies," which often meant missing fingers, missing toes, or other shortening of the limbs. Some later studies downplay the risk and some argue that the early bad results were due, in part, from performing CVS before the 10th week. Personally, I've noted a correlation between the gestational development and the injury. So, it is not surprising to me that later studies tend to find the limb defects more limited. Now that more tests occur at the 11 or 12 weeks, compared to 9 or 10 weeks, it makes sense that the fetus was more developed and less susceptible to injury.

Hemangiomas, which look like port wine stains on the skin, is another condition researchers and others have noticed among children born following chorionic villus sampling.

Of course, your pregnancy counselor should discuss with you the above risks, and all other risks, before you decide whether to go forward with the procedure.

If (1) your Oregon pregnancy counselor did not thoroughly cover the risks and benefits, (2) you would have decided against CVS if she had discussed these issues, and (3) your child suffered because of the poor counseling, then you should contact me, an Oregon attorney who has helped children injured because of bad counseling regarding chorionic villus sampling.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Oregon's Court of Appeals ruled that there are circumstances when a doctor does not have a right to participate, or "intervene," in a lawsuit alleging he malpracticed. In Dixie Taylor v. Portland Adventist Medical Center, a woman went to the emergency room, was sent home, and died. Her loved ones sued the hospital for medical malpractice, not the two doctors involved in the decision to send her home.

The doctors and hospital were in a bit of a pickle. The doctors were employees of the hospital. But, if the hospital has to pay a judgment because of the doctors' malpractice, then the hospital had a right to reimbursement from the doctors. (This right is called "indemnity.") The hospital could have sued the doctors in the same lawsuit, but decided not to. Certainly, the hospital did not want the jury to witness the family AND the hospital arguing that the doctors screwed up.

The doctors said they wanted to be in court to defend their professional reputations, even though they were not named as defendants.

Oregon's Court of Appeals held that Oregon's rules provide two paths to intervene in a lawsuit. One is as a matter of right: when the jury will make a decision that legally binds you. The other is permissive intervention, when the person has some good reasons to be in the lawsuit, but the there are good reasons to exclude the person. All agreed that this was a permissive intervention situation because even if the jury finds for the family of the woman who died, that decision does not bind the doctors who are not parties to the lawsuit. In other words, if the family wins and the hospital later sues the doctors for reimbursement, then the doctors can still argue that they were not negligent, despite what the first jury ruled.

The court found that the doctors had good reasons to participate in the lawsuit. Nevertheless, it upheld the trial judge's decision to exclude them for the following reasons:

• The hospital was highly motivated to win the lawsuit. If it wins, then the doctors have nothing to worry about.
• Whatever the outcome, the verdict would not prejudice the case between the doctors and the hospital.
• Under our system, the family gets to decide whom to sue.
• If there were three defendants in the case, with three defense lawyers and many more expert witnesses, then the family would suffer at trial. Three defense lawyer would give opening statements; three defense lawyers would cross-examine witnesses; three defense lawyers would deliver closing arguments. The case would become much more complicated, more confusing for the jury, AND much more expensive.

Although it may sound harsh that the doctors could not participate, one wonders if they really wanted to be in the courtroom. Instead, I suspect that the insurance company for the hospital wanted to have all three defense lawyers there to try to overwhelm the lawyer for the family.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Today, the Oregon Supreme Court ruled that homeowners may sue the contractor who built their home for negligence; they did not need to rely only on a breach of contract claim. In Abraham v. T. Henry Construction, the distinction was important because, by the time the homeowners discovered the construction defects, the time had expired for a breach of contract lawsuit.

Generally, when someone breaches a contract, it does not matter whether the breach is intentional or negligent. If you do not live up to your bargain, then you must pay the other person for the monetary loss caused by your breach. Often, the person hurt by the breach may only sue for breach of contract, but there are exceptions.

The first exception is when a "special relationship" exists between the parties. The lawyer-client relationship, for example is considered a special relationship of trust. That's why a client may sue his or her attorney for legal malpractice, not just breach of contract. Other special relationships include those between people and their doctors, architects, engineers, and trustees.

Another exception to the general rule that one may sue the other side of a contract only for breach of contract is when there is some standard of care or conduct independent of the contract. Here, Mr. and Mrs. Abraham alleged that both (1) common law negligence established an independent duty of care and (2) Oregon's building code sets a standard independent from the contract. They alleged that the contractor failed to meet either standard, and that failure caused water damage to their house. Oregon's Court of Appeals relied on the building code to find an independent standard to support a negligence claim.

Oregon's Supreme Court agreed that Mr. and Mrs. Abraham could sue in negligence, but not just because of the building code. The court reminded us that when a builder's negligence causes property damage, then even people who did not contract with the builder may sue. Just because you hired the builder does not mean you lose your right to sue for negligence. The homeowner might have both a claim for breach of contract and for negligence.

When applying the law to the facts in this case, the court said the homeowners could proceed with their negligence suit under the general common law claim that their contractor failed to exercise reasonable care to avoid foreseeable property damage.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Radiologists are among the doctors most liable to claims of medical malpractice, according to the authors of a study entitled, Spectrum of diagnostic errors in radiology. The authors surveyed other studies, and fund an average error rate among radiologists of "around 30%," with missed cancer among the most common errors.

The authors found four main reasons for radiologist negligence: (1) not seeing the cancer or fracture, (2) misinterpreting what was seen, (3) failure to suggest the next appropriate step, and (4) not communicating with the referring doctor in a timely and appropriate way.

Missing the lesion, entirely, sometimes occurs when the doctor is focusing on something more eye-catching on the image, or because the doctor started with a preconceived notion of what he or she is looking for. Even without distraction, 30% to 70% of breast cancers found on a later mammogram can be seen on an earlier mammogram, according to a bulletin issued by the American College of Radiology.

The article discusses that a radiologist's job is not finished by the mere issuing of a report. If the radiologist finds something not expected or something requiring urgent attention, he or she should communicate directly with the physician. Also, if the radiologist sees something that is not clear or inconclusive, then the radiologist should report on what other procedures might be performed to achieve a more reliable diagnosis.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Today, Oregon's Court of Appeals let a defense lawyer get away with a mistake. The case, Dickey v. Rehder, highlights an interesting unfairness in how Oregon law treats a late filing by a plaintiff compared to a late filing by a defendant.

Mr. Jim Dickey exchanged land for a $250,000 promissory note. When he was not paid, he sued both the wife and the estate of the deceased husband who signed the note. The wife, Ms. Rehder, did not respond in time, and Mr. Dickey's attorney obtained a default judgment against her. Later, the lawyer for the wife asked the court to overturn the default judgment, but did not do it in the right way. The court gave the attorney a "do-over," and eventually lifted the default judgment.

Even though the attorney messed up when trying to reverse the judgment, it was not legal malpractice, because there probably was no harm done (unless he was stupid enough to charge Ms. Rehder for the efforts to correct his mistake). Before one may sue for legal malpractice, the malpractice must cause some damage.

But here's the rub of the case for me. If my client files a lawsuit one day late, then his or her claim is lost forever. No excuses. No do-overs. Even a quadriplegic may not seek justice if she sues one day late.

On the other hand, if the alleged wrongdoers are late in responding to a complaint, the court, nearly always, gives them a second or third chance. Somehow, Oregon law recognizes the unfairness of a defendant losing by default. Yet, it is okay for a defendant to win by default.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

An Oregon jury awarded $821,000 for the wrongful death of Ruby Larson against the Pheasant Pointe Retirement and Assisted Living Residents and its Parent company. The family entrusted their beloved Ruby to the assisted living facility. The nursing home knew that Ruby had dementia and wandered off, but kept letting her do it. A young boy found Ruby's dead bones.

Too often, Oregon's assisted living facilities are bad. Oregon is among the worst. From my cases against them, I have seen how out-of-state owners run some facilities with too few staff. When their employees complain or try to make the facilities comply with the law, the company fires complainer.

In a nutshell, here is the problem. Some facilities promise everything to potential customers. Pheasant Point marketed itself as a place for people with memory problems. In cases I've had against other places, facility directors get bonuses based, in part, on how full the facility is. They get bonuses for keeping costs down. So, the pressure from out-of-state masters is to keep the number of residents high and number of staff low. Because Oregon does not have sufficient resources to police the facilities, too often assisted living facilities get away with it.

I happened to see the lawyer who represented the family in court on Monday. She looked extremely preoccupied. Now, I know it was because the jury was deliberating. Thank goodness for lawyers like Jane Paulson, who fight for clients like Ruby's family. Only when the costs of neglect become too high will these big for-profit companies consider hiring sufficient staff make good on the promises they make to care for and about people.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Jurors awarded $677 million against a nursing home because it understaffed its skilled nursing facilities. In Oregon, I have seen the same thing, time and again. These companies make big promises of excellent care and abundant services for assisted living facilities. Yet, they consistently run understaffed. Also, I've seen Oregon facilities underpay their staff and then get rid of the most caring staff members who actually complain about the problems.

We often think about these cases in terms of malpractice or abuse. However, I now see it as fraud: the corporations that operate the homes promise services that they simply cannot deliver with the staff they are willing to hire and pay.

Oregon law protects both the residents of homes and nurses and staff who blow the whistle. I love to represent victims and whistleblower employees because I think, hope and pray that once the companies factor in the costs of lawsuits, they will decide it is cheaper to hire more workers and provide good care.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Monday in Portland, Oregon was typical. The weather changed from nice to rainy, I had my plan to work for four different clients. My plans always get a bit side-tracked by people who call seeking help from an attorney. Today, I reviewed records and spoke with a Salem man who wants to sue his spine surgeon for medical malpractice, a Portland woman who asked me about sexual harassment, and a Portland man who discovered unhealthful mold in his rental condominium. I will not represent any of them.

So, together, I probably gave away 1-½ hours of my time today. I don't mind; it's part of my job. Usually, I'm happy to help. However, sometimes people think that I should give more than my initial screening and initial thoughts. Some get quite indignant, as if I'm wrong to want to be paid for my 30 years of legal study and practice. When I ask them if they would be willing to donate their time to help me with my issues, like yard work or cleaning the garage, often, they get my point.

Pro bono is a term that refers to free help from attorneys for needy people or causes. Typically, attorneys recognized for pro bono work are big firm lawyers who do not bill for a particular job, yet never miss a paycheck. They carefully track their hours (perhaps the firm gets a tax break). Then, they can say they donated 30 hours for a particular cause. That's good, and they deserve recognition.

For lawyers who help people -- "plaintiff's lawyers" as we are known -- we give out free help to people just about every day. In a year, I probably give over 200 hours of time, and other plaintiff's lawyers probably do the same. I help a lot of people: both those who think they have a claim plus those who do not get sued because I explained the law to someone who wanted to sue them.

Here's my best potential client (PC) question:

PC: My boss at work was harassing me and then he fired me. I'm probably the best worker on site. I think I have a case.

Me: Why do you suppose he did that?

PC: I slept with his wife, but they were separated at the time. . . .

Sorry dude, sleeping with the boss's wife is not protected activity.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The Oregon Court of Appeals clarified when a patient may sue a clinic or hospital alleging medical malpractice of a physician. In Eads v. Borman and Willamette Spine Center, Mr. Eads became partially paralyzed after a series of back surgeries by Dr. Timothy Borman. Mr. Eads sued Dr. Borman and also sued Salem's Willamette Spine Center, LLC, because he believed Dr. Borman was acting on behalf of the clinic. Oregon's Court of Appeals held that Mr. Eads's "subjective belief" was not enough without facts of certain conduct or control by Willamette Spine Center. It ruled that Willamette Spine Center was not responsible for the conduct of Dr. Borman. The court did not say whether Dr. Borman's medical practice was excellent or poor or had anything to do with Mr. Eads's injury.

Generally, when someone is acting on behalf of another and subject to his control, then you can sue both (1) the "agent" or employee and (2) the "principal." The Court held that there was no evidence that Willamette Spine Center controlled the work of Dr. Borman. It merely owned the building, leased the space, provided signage and a logo. In fact, Dr. Borman did not even pay rent to Willamette Spine Center. He paid one of the tenants in an office-sharing arrangement.

Although one of the owners of Willamette Spine Center referred Mr. Eads to Dr. Borman, the court found that the referral of a patient between doctors had nothing to do with the corporate landlord. It could be different if Dr. Borman were REQUIRED to accept any referrals from the clinic or from, say, a government agency. But Dr. Borman was free to accept or reject the patient.

The Oregon court also rejected the claim that Willamette Spine Center, in effect, tricked Mr. Eads into thinking Dr. Borman was acting on behalf of the clinic. "Apparent agency" exists only when the apparent principal acts to "hold out" the person as its agent and the injured party relies on that act when hiring the agent. Adding Dr. Borman's name to the building directory was not enough, held the court. Although the Willamette Spine Center name and logo appeared on Dr. Borman's business card, the court noted that was an act of Dr. Borman, not an act of Willamette Spine Center. Dr. Borman's use of the building's name and logo did not make Willamette Spine Center responsible for Dr. Borman's work.

According to this case, a clinic or hospital or other entity is responsible for physician malpractice when: (1) it employs the doctor, (2) it requires the doctor to accept patients, (3) it has the right to control the work of the doctor, or (4) it acts to make patients think that the doctor is the employee or agent of the clinic.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.