Stone v. Witt ( 2024 )

722 April 10, 2024 No. 213
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Jerry C. STONE,
Personal Representative for the Estate of
Marika Jeanne Stone, an Oregon Resident,
Plaintiff-Appellant,
v.
Shante Lynn WITT et al.,
Defendants,
and
Nancy L. BRENNAN, DO;
St. Charles Health Systems, Inc.,
dba St. Charles Family Care, an Oregon corporation;
High Desert Personal Medicine, LLC,
an Oregon limited liability company;
Kevin Rueter, MD; MosaicMedical,
an Oregon Corporation; and Walgreen Co.,
a Foreign Corporation,
Defendants-Respondents.
Deschutes County Circuit Court
18CV14401; A176439
Jack L. Landau, Senior Judge.
Argued and submitted May 22, 2023.
Kathryn H. Clarke argued the cause and filed the briefs
for appellant.
Hillary A. Taylor argued the cause and filed the brief
for respondents St. Charles Health Systems, Inc., dba St.
Charles Family Care and Nancy L. Brennan, D.O.
Ruth A. Casby argued the cause for respondents
MosaicMedical and Walgreen Co. Also on the briefs were
Janet M. Schroer and Hart Wagner LLP.
Travis A. Merritt, Thomas F. Armosino Jr., and Frohnmayer,
Deatherage, Jamieson, Moore, Armosino & McGovern,
P.C., filed the brief for respondents High Desert Personal
Medicine, LLC, and Kevin Rueter, M.D.
Cite as 331 Or App 722 (2024) 723
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Reversed and remanded.
724 Stone v. Witt
AOYAGI, P. J.
While riding her bicycle, Dr. Marika Stone was
struck and killed by a vehicle driven by Shantel Witt.
Plaintiff, the personal representative of Stone’s estate,
appeals the dismissal of his negligence claims against
Dr. Nancy Brennan and her employer St. Charles Health
System, Inc.; Dr. Kevin Rueter and his employer High
Desert Personal Medicine, LLC; MosaicMedical; and
Walgreen Co. (collectively, “defendants”).1 Defendants are
medical providers and a pharmacy that, according to plain-
tiff, negligently treated Witt before she hit Stone. In the
operative complaint, plaintiff alleges that defendants vio-
lated their statutory standards of care by prescribing and
dispensing large amounts of addictive drugs to Witt, and
by not taking steps to prevent Witt from misusing those
drugs, despite knowing or having reason to know that Witt
was abusing drugs. Plaintiff further alleges that, as a fore-
seeable result of defendants’ conduct, Witt drove a vehicle
while under the influence of those drugs and struck and
killed Stone. The trial court dismissed plaintiff’s claims
against defendants for failure to state a claim, reasoning
that, because Stone was not defendants’ patient, they were
under no obligation to avoid creating a foreseeable risk of
physical injury to her.
On appeal of the resulting limited judgments, plain-
tiff challenges the dismissal of his claims. He argues that
defendants’ status as medical or pharmaceutical provid-
ers does not insulate them from the general obligation to
avoid creating foreseeable risks of physical harm to others.
As explained below, under these circumstances—where
plaintiff alleges that defendants breached their statutory
standards of care in treating their patient, and thereby not
only created a risk of harm to the patient but also unreason-
ably created a foreseeable risk of physical injury to a third
party—we agree. Accordingly, we reverse and remand.
1
We use “defendants” in this opinion to refer only to the defendants who
appear on appeal. Plaintiff’s claims against Witt are not at issue in this appeal,
nor are plaintiff’s claims against other defendants that were dismissed on
statute-of-limitations grounds.
Cite as 331 Or App 722 (2024) 725
I. PLAINTIFF’S ALLEGATIONS
We state the facts as alleged in the complaint.
Tomlinson v. Metropolitan Pediatrics, LLC, 362 Or 431, 434,
412 P3d 133 (2018). Given the nature of the legal issue on
appeal, only the basic facts are necessary to our discussion.
Defendants Brennan, St. Charles, Rueter, High
Desert, and MosaicMedical are medical providers that treated
Witt at various times. Plaintiff alleges that they violated their
statutory standard of care, ORS 677.095(1), as to Witt by pre-
scribing her addictive drugs in excessive amounts and for
excessive periods of time without appropriate medical reasons
and despite knowing or having reason to know that Witt was
abusing the drugs. See ORS 677.095(1) (“A physician licensed
to practice medicine * * * by the Oregon Medical Board has
the duty to use that degree of care, skill and diligence that is
used by ordinarily careful physicians in the same or similar
circumstances in the community of the physician or a similar
community.”). Plaintiff alleges that defendants’ conduct fore-
seeably caused Witt to develop and continue to suffer from a
substance abuse disorder and foreseeably created a risk that
she would drive under the influence of the prescribed drugs
and other drugs and injure a third party like Stone.
Defendant Walgreen is a pharmacy where Witt filled
some of her prescriptions. Plaintiff alleges that Walgreen’s
pharmacists violated their rule-based standard of care,
OAR 855-115-0105(1), as to Witt by continuing to dispense
drugs to her despite knowing or having reason to know
that Witt had a substance abuse disorder and was misus-
ing and seeking excessive amounts of the drugs. See OAR
855-115-0105(1) (requiring practicing pharmacists to “[u]se
that degree of care, skill, diligence and reasonable pro-
fessional judgment that is exercised by a careful and pru-
dent Pharmacist in the same or similar circumstances”).2
Plaintiff alleges that Walgreen’s pharmacists’ conduct also
foreseeably contributed to Witt’s substance abuse disorder
and foreseeably created a risk that she would drive impaired
and injure someone like Stone.
2
OAR 855-115-0105(1) contains identical operative language to former OAR
855-019-0200, renumbered as OAR 855-115-0105(1) (March 1, 2024), so we use
the current numbering.
726 Stone v. Witt
For purposes of this appeal, the parties treat the
question of the physician and medical practice defendants’
liability to plaintiff and the question of Walgreen’s liability
to plaintiff as raising the same legal issue. Under the cir-
cumstances, we do the same and do not distinguish among
the defendants in that regard, using “statutory standards
of care” to refer generally to both ORS 677.095(1) and OAR
855-115-0105(1).
II. FORESEEABILITY IN NEGLIGENCE LAW
Before discussing the specific facts of this case fur-
ther, we pause to provide an overview of certain principles
of negligence law that give context to the way in which the
issues were framed below and now arise on appeal.
In Fazzolari v. Portland School Dist. No. 1J, 303 Or
1, 17, 734 P2d 1326 (1987), the Supreme Court summarized
the law of negligence:
“[U]nless the parties invoke a status, a relationship, or a
particular standard of conduct that creates, defines, or lim-
its the defendant’s duty, the issue of liability for harm actu-
ally resulting from defendant’s conduct properly depends
on whether that conduct unreasonably created a foresee-
able risk to a protected interest of the kind of harm that
befell the plaintiff.”
Thus, in an ordinary common-law negligence scenario, when
a person unreasonably creates a foreseeable risk of physical
harm, the class of potential plaintiffs to whom the person
may be liable depends on the foreseeability of the risk to
those plaintiffs. See, e.g., Moody v. Oregon Community Credit
Union, 371 Or 772, 784, 542 P3d 24 (2023) (one of the ele-
ments of negligence is that the plaintiff “ ‘was within the
class of persons’ ” the risk to whom made the defendant’s
conduct unreasonable (quoting Solberg v. Johnson, 206 Or
484, 491, 760 P2d 867 (1988))).
This case implicates the “unless” clause in
Fazzolari—“unless the parties invoke a status, a rela-
tionship, or a particular standard of conduct that creates,
defines, or limits the defendant’s duty.” 303 Or at 17. Oregon
courts have grappled with that clause for decades, including
in the context of medical negligence claims alleging that a
Cite as 331 Or App 722 (2024) 727
medical provider breached a statutory standard of care to a
patient. In the process, the Supreme Court has made clear
that foreseeability principles are relevant to claims arising
out of a special relationship. “[I]f the special relationship (or
status or standard of conduct) does not prescribe a particu-
lar scope of duty, then ‘[c]ommon law principles of reason-
able care and foreseeability of harm are relevant.’ ” Piazza
v. Kellim, 360 Or 58, 73 n 9, 377 P3d 492 (2016) (quoting
Cain v. Rijken, 300 Or 706, 717, 717 P2d 140 (1986), quoted
with approval in Fazzolari, 303 Or at 16-17); see also Sloan
v. Providence Health System-Oregon, 364 Or 635, 644, 437
P3d 1097 (2019) (same); Oregon Steel Mills, Inc. v. Coopers &
Lybrand, LLP, 336 Or 329, 342, 83 P3d 322 (2004) (same).
But exactly how foreseeability principles are rele-
vant to claims arising out of a special relationship is less
clear. As discussed in Piazza, foreseeability “plays a role in
at least two overlapping common-law negligence determi-
nations.” 360 Or at 70. First, it plays a role in determin-
ing “whether the defendant’s conduct unreasonably created
a foreseeable risk of harm to a protected interest of the
plaintiff such that the defendant may be held liable for that
conduct—formerly described in terms of ‘duty’ and ‘breach’
as measures of negligent conduct.” Id. Second, it plays a
role in determining “whether, because the risk of harm
was reasonably foreseeable, the defendant may be held lia-
ble to the plaintiff for the particular harm that befell the
plaintiff”—“a concept that traditionally was referred to
as ‘proximate’ cause and which, in our current analytical
framework, operates as a legal limit on the scope of a defen-
dant’s liability for negligent conduct.” Id. at 70.
Thus, although foreseeability is a single concept
under Fazzolari, it appears in at least two different places
when mapped onto the elements of common-law negligence.
See Fazzolari, 303 Or at 14 (explaining that the court’s deci-
sion in Stewart v. Jefferson Plywood Co., 255 Or 603, 469 P2d
783 (1970), “made foreseeable risk the test both of negligent
conduct and of liability for its consequences without phras-
ing the test in terms either of causation or of duty”); accord
Piazza 360 Or at 70 (noting that foreseeability’s two roles in
the common-law negligence framework are “overlapping”).
728 Stone v. Witt
There is a fairly well-developed body of case law
regarding the second role of foreseeability in special-
relationship cases, i.e., what was once referred to as proxi-
mate cause. For example, in Sloan, the court explained that
“when a physician-patient relationship exists,” the physician
“has an affirmative duty” to meet the statutory standard of
care as to the patient, but “[t]here is nothing in the definition
of that duty that precludes foreseeability from being a limit
on the scope of liability,” and “the fact that physicians have
a specified duty of care does not mean that foreseeability is
irrelevant in medical negligence cases.”3 364 Or at 644-45.
In Piazza, the defendants had a special relationship with the
decedent, and the issue was whether the complaint “alleged
facts sufficient, if proved, to permit a jury determination
that reasonable persons in defendants’ positions would have
foreseen a risk to [the decedent]’s safety of the kind of harm
that befell her.” 360 Or at 73-74 (internal quotation marks
omitted)). In Oregon Steel Mills, Inc., 336 Or at 343-47, an
accounting firm allegedly breached its duty to a client, result-
ing in the delayed sale of the client’s stock, and the Supreme
Court held that the firm could not be held liable for losses
caused by a decrease in the stock price during the period
of delay, because the price drop was attributable to market
forces and not a reasonably foreseeable result of the delay.
The case law is still developing regarding the first
role of foreseeability in special-relationship cases, i.e.,
“whether the defendant’s conduct unreasonably created
a foreseeable risk of harm to a protected interest of the
plaintiff such that the defendant may be held liable for that
conduct.” Piazza, 360 Or at 70. This case pertains to that
issue. Both below and on appeal, the parties have therefore
focused their arguments on two cases that address that
3
In Fazzolari, the court explained that “duty” is a conclusory term that
stands in for either a circumstance-specific judicial evaluation of foreseeability or
a categorical limitation on liability with articulable and reasoned origins. 303 Or
at 17 (“ ‘Defendants sometimes deny liability * * * by arguing that although they
may have breached a duty to someone, it was not a “duty to” the plaintiff. But that
argument can be more directly phrased in terms of foreseeability, and perhaps
other reasons for extending or limiting the scope of liability for defendant’s neg-
ligence, than by using the conclusory word “duty” as a premise.’ ” (Quoting Cain,
300 Or at 715.)). However, as it did in Fazzolari, the court has continued to use
the word “duty” to describe the obligations imposed by special relationships and
other articulable and reasoned limits on liability.
Cite as 331 Or App 722 (2024) 729
issue—Zavalas v. Dept. of Corrections, 124 Or App 166, 861
P2d 1026 (1993), rev den, 319 Or 150 (1994), and Tomlinson,
362 Or 431—which we discuss at length in our analysis.4
III. THE TRIAL COURT’S RULINGS
We return to the specific facts of this case. As
previously described, plaintiff brought negligence claims
against defendants relating to Stone’s death. Except for
MosaicMedical, each defendant moved to dismiss the claims
against them under ORCP 21 A(1)(h), on the ground that the
alleged facts failed to state a claim because Stone was a mem-
ber of the public, not defendants’ patient.5 MosaicMedical
filed its motion later than the other defendants and, due to
the timing, styled it a motion for summary judgment under
ORCP 47 C, but it was “functionally equivalent to a motion
to dismiss for failure to state a claim,” so it is treated the
same and subject to the same standard of review.6 Johnson
v. Johnson, 302 Or 382, 388 n 5, 730 P2d 1221 (1986).
As grounds for dismissal, defendants argued that
the complaint alleges that defendants violated their stan-
dards of care as to Witt, rather than Stone, and that they
could not be held liable for Stone’s death when Stone was not
their patient and, consequently, they owed no duty to Stone.
The trial court granted defendants’ motions. In
short, the court concluded that, as to professional negligence
4
The court has also held that foreseeability determines how far liability
extends in cases involving a somewhat different special relationship scenario—
one in which the defendant’s special, usually custodial, relationship with an actor
creates an affirmative duty to protect the general public from foreseeable risks
arising from the actor’s conduct. See, e.g., Buchler v. Oregon Corrections Div., 316
Or 499, 506-07, 853 P2d 798 (1993) (risk of physical injury to members of the
public arising from negligently allowing an inmate to escape from custody was
not foreseeable because the defendant had no knowledge or reason to know that
the inmate would be violent); Cain, 300 Or at 709 (accepting custody of dangerous
psychiatric patient pursuant to a statute created a duty to use reasonable care to
treat him and control his acts, and, consequently, protect the general public from
foreseeable risks that he created).
5
ORCP 21 A(8) was renumbered ORCP 21 A(1)(h) effective January 1, 2022.
The relevant language is identical, so we use the current numbering.
6
The form of MosaicMedical’s filing is not at issue. However, to promote good
practice, we note that, when challenging the sufficiency of a complaint, “the bet-
ter practice might be to file a motion to dismiss under ORCP 21A[(1)(h)] or for a
judgment on the pleadings under ORCP 21B.” Johnson, 302 Or at 388; Payless
Drug Stores v. Brown, 300 Or 243, 246, 708 P2d 1143 (1985) (similar statement).
730 Stone v. Witt
claims, foreseeability is not relevant to determining liabil-
ity in the first instance. The court viewed existing Oregon
case law as recognizing a “general rule that medical profes-
sionals are not liable to non-patient third parties for their
professional negligence”—a no-duty rule—with a narrow
exception that turns not on foreseeability but on case-by-
case factors that the court identified in Tomlinson.
IV. THE PARTIES’ ARGUMENTS ON APPEAL
On appeal, plaintiff challenges the dismissal rul-
ings, arguing that there is no general rule that medical
professionals are not liable to nonpatient third parties for
their professional negligence and that, in these circum-
stances, defendants can be held liable if plaintiff proves his
allegations. Plaintiff relies on our decision in Zavalas and
argues that the Supreme Court’s later decision in Tomlinson
is distinguishable on the facts but legally consistent with
Zavalas. Ultimately, plaintiff contends that defendants’ sta-
tus as medical providers does not insulate them from the
obligation that everyone has not to unreasonably create
foreseeable risks of physical harm to others.
In response, defendants argue that, except in very
limited circumstances, physicians and pharmacists owe a
duty only to their patients, that any potential liability to
third parties is narrowly circumscribed by Tomlinson,
and that Zavalas is largely irrelevant because it predates
Tomlinson.
V. LEGAL ANALYSIS
Plaintiff argues that this case is controlled by
Zavalas, a 1993 decision of this court, and defendant argues
that it is controlled by Tomlinson, a 2018 decision of the
Supreme Court. We therefore proceed to discuss those cases.
In Zavalas, Shonkwiler caused a car accident while
driving under the influence of Xanax and heroin, causing the
death or physical injury of several children. 124 Or App at
170. The plaintiffs, on behalf of the children, brought claims
against Shonkwiler’s physician, alleging that he “was negli-
gent in prescribing Xanax to Shonkwiler when she presented
symptoms of ‘psychotic illness, depression, chronic bipolar
Cite as 331 Or App 722 (2024) 731
mental disorder and chronic drug use,’ and in authorizing
the refill of that prescription.” Id. The physician argued that
he had no duty to the children. Id. He asserted that, as a
matter of law, “a physician has no duty to third parties” and
that, consequently, “a physician is shielded from liability to
third parties who claim that the physician’s negligent treat-
ment of a patient was the foreseeable cause of their harm.”
Id. at 171.
We disagreed, rejecting the proposition that “that
under no circumstances can a physician ever be liable to a
nonpatient third party,” and noting that we had found no
authority for it. Id. at 173. To the contrary, we concluded
that when a physician prescribes drugs to a patient in vio-
lation of their statutory standard of care and, as a result,
the patient foreseeably injures third parties, the physician
may be liable to the third parties in negligence. Id. at 173-
74. Under Zavalas, “professionals are not entitled to the
benefit of an across-the-board ‘no duty’ rule merely because
they are not in privity with those whom their negligent con-
duct affects.” Delaney v. Clifton, 180 Or App 119, 124, 41
P3d 1099, rev den, 334 Or 631 (2002) (describing the holding
of Zavalas); see also Docken v. Ciba-Geigy, 86 Or App 277,
280-81 739 P2d 591, rev den, 304 Or 405 (1987) (where the
plaintiff’s decedent died as a result of taking a drug pre-
scribed for his brother, it was error to dismiss the plaintiff’s
negligence claims against the prescribing physician, phar-
macy, and drug manufacturer, because we could not “say as
a matter of law that the harm was not foreseeable or that
the complaint fails to allege facts from which a jury could
find defendants negligent”).
This case is directly analogous to Zavalas and
appears on its face to be controlled by Zavalas. However,
defendants argue that Tomlinson effectively trumps Zavalas,
so we next consider Tomlinson.
In Tomlinson, two parents brought negligence claims
against several medical providers who had physician-patient
relationships with the parents’ first child, but not with the
parents themselves. 362 Or at 434. The parents alleged that
the defendants had negligently failed to timely diagnose
their first child’s genetic disorder; that they would not have
732 Stone v. Witt
had a second child if they had known of the genetic disorder;
that they suffered economic and emotional damages as a
result of the defendants’ negligence, related to their second
child having the same genetic disorder; and that their dam-
ages were a foreseeable consequence of the defendants’ neg-
ligence. Id. The trial court dismissed the plaintiffs’ claim for
failure to state a claim. Id.On review, the Supreme Court reversed. As to
the parents’ claims, the court identified the primary issue
in dispute as being whether the parents “had identifiable
interests that defendants were legally obligated to protect
under the facts alleged in their respective claims.” Id. at
440. The defendants argued that “a direct physician-patient
relationship between the parties” was required and that the
plaintiffs could not state negligence claims based “on the
foreseeability of the injuries alone.” Id. at 442.
The Supreme Court agreed on the latter point—
that the plaintiffs’ negligence claims could not be based on
foreseeability alone—“for two reasons.” Id. The first reason
was that “the parents allege[d] only economic and emotional
injuries.” Id. The court cited cases explaining that “liability
for purely economic harm must be predicated on some duty
of the negligent actor to the injured party beyond the com-
mon law duty to exercise reasonable care to prevent foresee-
able harm,” Oregon Steel Mills, Inc., 336 Or at 341 (internal
quotation marks omitted), and that liability for emotional
injuries cannot be based on foreseeability alone but instead
requires “another ‘legal source’ of liability for the plaintiff to
recover emotional distress damages,” Philibert v. Kluser, 360
Or 698, 703, 385 P3d 1038 (2016). See Tomlinson, 362 Or at442 (citing those cases).
The second reason was that “the parents allege[d]
that their injuries resulted from defendants’ failure to take
affirmative steps to protect them from a risk of harm that
defendants did not create—namely, the reproductive risks
associated with the parents’ preexisting genetic composi-
tion.” Id. at 442-43. The court recognized that distinction
as one emphasized in the Restatement. “An actor’s conduct
creates a risk when the actor’s conduct or course of conduct
results in greater risk to another than the other would have
Cite as 331 Or App 722 (2024) 733
faced absent the conduct.” Restatement (Third) of Torts: Phys.
& Emot. Harm § 7 comment o. “[A]ctors engaging in conduct
that creates risks to others have a duty to exercise reason-
able care to avoid causing physical harm.” Restatement § 7
comment a (emphasis added); see also Fazzolari, 303 Or at
17 (generally, “the issue of liability for harm actually result-
ing from defendant’s conduct properly depends on whether
that conduct unreasonably created a foreseeable risk to a
protected interest of the kind of harm that befell the plain-
tiff” (emphasis added)). By contrast, an actor who did not
create the risk has a duty to protect against it only in lim-
ited circumstances: “An actor whose conduct has not cre-
ated a risk of physical or emotional harm to another has
no duty of care to the other unless a court determines that
one of the affirmative duties provided in §§ 38-44 is appli-
cable.” Restatement § 37; see id. § 40 (describing special
relationships); see also Tomlinson, 362 Or at 442-43 (citing
Restatement § 37).
For those two reasons, the Tomlinson court agreed
with the defendants that, “without some justification for pro-
viding legal protection, a person is not generally required to
affirmatively protect the economic and emotional interests of
others.” Tomlinson, 362 Or at 442 (emphases added).
The court disagreed, however, that the parents
needed a direct physician-patient relationship with the
defendants to state a negligence claim. Id. at 443. “A direct
physician-patient relationship can be one ground for creat-
ing affirmative protections of a plaintiff’s economic and emo-
tional interests under negligence law.” Id. (emphasis in orig-
inal). However, “[i]t does not necessarily follow that a direct
physician-patient relationship is the only such ground avail-
able to the parents.” Id. (emphasis in original); see also id. at
444-45 (rejecting the defendants’ proposition that “the very
essence of medical services is to diagnose and treat patients
and not to benefit nonpatients” (emphasis in original)).
To the contrary, the Tomlinson court concluded that,
“in carrying out a professional obligation to a client, the pro-
fessional may be required to protect the interests of a third
party as well.” Id. at 445. Whether the professional is required
to do so must be decided on a case-by-case basis. Id. The
734 Stone v. Witt
court identified three factors that, upon consideration, led it
to conclude that the defendants were potentially liable to the
parents in Tomlinson: (1) “whether the relationship between
the parties is a type of relationship that generally entails
a mutual expectation of service and reliance”; (2) “whether
recognizing such a claim would interfere with or impair the
loyalties that the professional owes to the client”; and (3) “as
in other circumstances involving liability for economic and
emotional injuries,” “whether the potential plaintiffs were
identifiable to the defendant or otherwise could be defined as
a class that avoids indeterminate liability.”7 Id. at 446.
We agree with plaintiff that Zavalas and Tomlinson
are not in conflict. The Tomlinson court diverged from the
foreseeability path laid in Fazzolari and went down a dif-
ferent path for two specific reasons—because the parents
sought damages only for economic and emotional harm, not
physical injury, and because the defendants did not create
the risk to which the parents were exposed. Id. at 442. It
was each or both of those circumstances that led the court to
conclude that more than foreseeability was required for the
parents to state a negligence claim against the defendants.
Moreover, we understand the factors discussed in Tomlinson
to be relevant only in such circumstances. That is, when the
typical foreseeability framework articulated in Fazzolari
applies—when the plaintiff alleges that the defendant’s con-
duct created a risk to a universally protected interest like
the interest in avoiding physical harm—that is the end of
the matter, and there is no need to consider the Tomlinson
factors.
Neither of the circumstances from Tomlinson exists
in this case. Here, plaintiff seeks damages for physical
injury. See Philibert, 360 Or at 703 (the interest in being
“free from physical harm at the hands of another” is “the
simplest legally protected interest” (internal quotation
marks omitted)). Further, unlike in Tomlinson, defendants
allegedly created the risk to Stone by negligently prescribing
7
Regarding the third factor, the court cited Philibert, where it observed that
“ ‘[e]motional distress, like economic loss, ripples throughout society as a foresee-
able result of negligent conduct. Without some limiting principle in addition to
foreseeability, permitting recovery for emotional injuries would create indetermi-
nate and potentially unlimited liability.’ ” Id. (quoting Philibert, 360 Or at 704).
Cite as 331 Or App 722 (2024) 735
and dispensing drugs to Witt.8 That is a critical distinction
under Tomlinson and the Restatement.
Ultimately, we understand Tomlinson to hold that,
because of the special relationship between physicians and
patients, a physician’s duty to protect a patient extends
beyond risks created by the physician—and that affirma-
tive duty also may extend to third parties in some circum-
stances. We also understand Tomlinson to hold that, when
only economic or emotional damages are sought, foreseeabil-
ity alone is not enough. We do not understand Tomlinson
to hold that a physician has no duty to protect nonpatient
third parties from risks created by the physician. Nor do we
understand Tomlinson to hold that more than Fazzolari fore-
seeability is required to hold a physician liable for breaching
a statutory standard of care in treating a patient under cir-
cumstances that unreasonably create a foreseeable risk of
physical injury to a third party.9
We emphasize that this is a case in which defen-
dants allegedly breached their statutory standards of care
to their patient. It is not a case where, for example, a phy-
sician complied with the standard of care for prescribing
drugs to a patient and the patient then physically injured a
third party—a situation in which imposing liability would
create a much greater risk of interfering with or impairing
8
Another case in which the medical providers did not create the risk is
Maltais v. PeaceHealth, 326 Or App 318, 532 P3d 510, rev den, 371 Or 509 (2023).
There, medical providers were allegedly negligent in failing to admit a danger-
ous patient to the hospital, and that person subsequently injured a third party.
The medical providers themselves did not create the risk to the third party—
rather, the danger existed due to the patient’s dangerousness—so we applied
the Tomlinson factors to determine whether she could state a negligence claim
against them. Id. at 326-28.
9
To the extent that defendants rely on Sloan and Mead v. Legacy Health
System, 352 Or 267, 276, 283 P3d 904 (2012), those cases are distinguishable
because they did not involve third parties. See Sloan, 364 Or at 645 (discussing
a physician’s “specified duty of care” and “affirmative duty” to patients in the
context of a claim brought on behalf of a patient who allegedly died as a result
of medical negligence); Tomlinson v. Metropolitan Pediatrics, LLC, 245 Or App
658, 673, 366 P3d 370 (2015), aff’d, 362 Or 431, 412 P3d 133 (2018) (“the issue in
Mead was whether the plaintiff—whose negligence claim was premised on the
existence of a physician-patient relationship—had demonstrated the existence
of that relationship,” and “the court had no reason to—and did not—address the
cognizability” of a third-party claim). Moreover, as to Mead, it cannot be read in
a way that conflicts with the Supreme Court’s subsequent decision in Tomlinson,
362 Or at 445.
736 Stone v. Witt
the physician’s duties to the patient. Cf. Tomlinson, 362 Or at
466 (considering whether the potential for liability to third
parties “would interfere with or impair the loyalties that the
professional owes to the client”). This case involves defen-
dants’ alleged failure to comply with their statutory stan-
dards of care in treating and dispensing to their patient,
Witt, and an allegedly foreseeable resulting physical injury
to a third party, Stone.
In sum, Zavalas is controlling in this case, and
Tomlinson does not change that. The trial court erred in
dismissing plaintiff’s negligence claims against defendants.
If this case goes to trial, it will be for the jury to decide as
to each defendant “whether the defendant’s conduct unrea-
sonably created a foreseeable risk of the subsequent conduct
[by Witt], and the type of harm that resulted from it.” Scott
v. Kesselring, 370 Or 1, 21-22, 513 P3d 581 (2022).
Reversed and remanded.