Gardner v. OHSU

For a medical malpractice claim, "findings of comparative fault can be based on the plaintiff's failure to take reasonable measures which might have prevented or reduced the injury caused by the defendant's negligence." Son v. Ashland Community Healthcare Services, 239 Or App 495, 509, 244 P3d 835 (2010).

Plaintiff appealed a general judgment and award of costs in favor of Defendants in an alleged wrongful death of the decedent in this case. Plaintiff assigned error to the trial court’s denial of Plaintiff's motion in limine, which allowed the jury to consider the decedent’s comparative fault. On appeal, Plaintiff argued Defendants could not use a comparative fault defense in this case because the decedent could not be faulted for conforming to her illness, which included the possibility of committing suicide. In response, Defendants argued they correctly applied the defense, given the facts of this case, since Oregon has no per se rule preventing the use of the defense in cases concerning outpatient suicide. For a medical malpractice claim, "findings of comparative fault can be based on the plaintiff's failure to take reasonable measures which might have prevented or reduced the injury caused by the defendant's negligence." Son v. Ashland Community Healthcare Services, 239 Or App 495, 509, 244 P3d 835 (2010). The Court held that it was up to the jury to determine the comparative fault of the decedent because Oregon does not have a per se rule against comparative fault defenses in suicidal outpatient cases. Additionally, the Court determined the defense was legally viable because decedent’s suicidal conduct was the result of her negligence in failing to follow treatment and provide complete and accurate information to her mental-health providers. 

Affirmed.