MARTINEAU v. Radiology Associates, P.C., a Corporation; Dariusz Zawierucha, M.D., an individual, Petitioners on Review, (2023)

Plaintiff petitions for reconsideration of this court's decision in Martineau v. McKenzie-Willamette Medical Center, 371 Or. 247, 533 P.3d 1 (2023), which reversed the decision of the Court of Appeals and affirmed the trial court's entry of judgment for defendants. Plaintiff seeks reconsideration of the merits of our opinion and the disposition. Plaintiff also seeks clarification of footnote 14 of the opinion, arguing that it could be incorrectly understood to state that a plaintiff asserting a loss of chance claim involving a decedent must prove that the defendant's negligence caused the death. To clarify that footnote, we modify it as follows: “To the extent that plaintiff's theory is that she should be able to recover damages for decedent's death without proving that, more likely than not, defendants’ negligence caused decedent's death * * * the claim fails because, in Smith, we rejected the theory that a lost chance claim can be based on a lowered standard of proof of causation. * * *.” (Modification italicized.)

We decline to reconsider the merits of our opinion, but agree that our ultimate disposition was in error. In affirming the trial court's entry of judgment for defendants, we did not consider plaintiff's second, third, and fourth assignments of error raised in the Court of Appeals that challenged evidentiary rulings by the trial court. Because the Court of Appeals reversed the trial court judgment on plaintiff's first and fifth assignments of error and remanded for a new trial, it declined to address those remaining assignments of error. Martineau v. McKenzie-Willamette Medical Center, 320 Or App 534, 536, 514 P.3d 520 (2022). Thus, the evidentiary rulings challenged in those other assignments of error have not been reviewed on appeal. Consistent with our usual practice, plaintiff's appeal therefore should be remanded to the Court of Appeals to consider those assignments of error. Accordingly, we allow plaintiff's petition for reconsideration and modify the disposition in Martineau, 371 Or. at 250, 278, 533 P.3d 1, as follows:

“The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for consideration of plaintiff's remaining assignments of error.”

The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified. The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for consideration of plaintiff's remaining assignments of error.

BUSHONG, J.