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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF CURRY
ELISHA COOKE-MOORE, fka ELISHA COOKE,
Plaintiff, v.
CURRY COUNTY HEALTH DISTRICT; CURRY COMMUNITY HEALTH, INC.; CURRY MEDICAL PRACTICE; CURRY MEDICAL CENTER; LORI JOHNS; WILLIAM FITTS; JESSICA CARLSON,
Case No.
COMPLAINT
(MEDICAL MALPRACTICE; OREGON TORT CLAIMS ACT); BATTERY
OT SUBJECT TO MANDATORY RBITRATION
13 Defendants. mount Claimed: $1,800,000.00
14 ee Authority ORS 21.160(1)(b) $252
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Plaintiff alleges as follows:
GENERAL ALLEGATIONS
1.
Plaintiff is a citizen of Oregon. Plaintiff received coordinated medical care and treatment
from Defendants in Curry County, Oregon.
2.
Defendant Curry County Health District ("CCHD") is a municipal corporation and special
district organized under ORS Chapter 440. CCHD provides comprehensive health care services
to residents in Curry County, Oregon, and operates under the name Curry Health Network. At all
times material herein, CCHD owned and operated Defendants Curry Medical Practice and Curry
Medical Center, which provide medical and health care services in Curry County.
Ill
Ill
COMPLAINT - Page 1
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
10/19/2017 2:27:32 PM17CV46203
Page 2
1 3.
2 At all times material herein, Curry General Hospital was owned and operated by CCHD.
3 Curry General Hospital is the sole hospital operating in Curry County.
4 4.
5 At all times material herein, Defendant Curry Community Health was a 50l(c)(3) non-
6 profit corporation providing integrated community health care and related services in Curry
7 County, Oregon.
8 5.
9 Defendant Lori A. Johns is a board certified registered nurse practitioner worldng within
10 the course and scope of her employment duties for Defendant Curry Community Health.
11 6.
12 Defendant William Fitts is a physician and OBGYN licensed to practice medicine in the
13 State of Oregon, practicing medicine in Curry County, Oregon, and acting within the course and
14 scope of his agency and/or employment duties with Defendants Curry Community Health and
15 CCHD.
16 7.
17 Defendant Jessica Carlson is a physician and surgeon licensed to practice medicine in the
18 State of Oregon, practicing medicine in Curry County, Oregon, acting within the course and scope
19 of her agency and/or employment duties with Defendants Curry Community Health and CCHD.
20 8.
21 At all times material herein, Defendant CCHD employed or otherwise engaged as agents-
22 actual or apparent-physicians and other medical personnel to provide medical care, treatment and
23 consultations to patients, including Plaintiff, admitted to its medical care facilities and hospital for ·
24 care, consultation, surgeries and treatments.
25 9.
26 At all times material herein, Defendant Curry Community Health employed or otherwise
27 engaged as agents-actual or appar~nt-physicians and other medical personnel to provide
28
. COMPLAINT - Page 2
Cauble, Cauble & Selvjg, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 3
1 medical care, treatment and consultation to patients, including Plaintiff, admitted to its medical
2 care facilities and hospital for care, consultation, surgeries and treatments. Curry Community
3 Health is vicariously and/or directly liable for the negligence and claims alleged herein.
4 10 ..
5 Plaintiff underwent a total hysterectomy on August 24, 2016. Plaintiff underwent a
6 prophylactic bilateral nipple sparing mastectomy with placement of implants on October 17, 2016.
7 11.
8 Before, during and after the surgeries she was provided care, treatment and consultation by
9 physicians and other medical personnel either employed by or engaged as agents of Defendants
10 CCHD and Curry Community Health.
11 12.
12 Each of the individual Defendants had a physician-patient relationship, hospital-patient
13 relationship, or other health care provider-patient relationship with Plaintiff.
14 13.
15 On or about August 4, 2015, Plaintiff was evaluated by Dr. Courtney Ridley for an annual
16 evaluation and Pap smear "well visit." Dr. Ridley noted that Plaintiff needed an assessment for a
17 Lynch Syndrome or breast cancer gene test, and ordered both a mammogram and "BRCAl" and
18 "BRCA2" testing to determine the same.
19 14.
20 The BRCA tests identify a person's genetic risks for breast cancer and ovarian cancer.
21 Lynch Syndrome is a genetic condition associated with increased risks and earlier onset of
22 colorectal, endometrial, ovarian and other cancers. There is no increased prevalence of breast
23 cancer with respect to Lynch Syndrome.
24 15.
25 On or about August 24, 2015, the mammogram testing results were reported negative and
26 revealed no suspicious mass or calcification.
27 Ill
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COMPLAINT - Page 3
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 4
1 16.
2 On or about December 4, 2015, Defendant Johns referred Plaintiff to gynecologist
3 Defendant Fitts for further examination relating to breast cancer. Defendant Johns incorrectly
4 interpreted Plaintiff's genetic testing results and misreported that Plaintiff had the MLH-1 gene
5 mutation and Lynch Syndrome.
6 17.
7 On or about January 14, 2016, Defendant Fitts evaluated Plaintiff during a gynecology
8 consultation. Defendant Fitts noted that Plaintiff's Pap smear, mammogram, and CA-125 test
9 results were normal and/or benign. In connection with the consultation, Defendant Fitts ordered
10 BRCAl and BRCA 2 tests.
11 18.
12 On or about February 18, 2016, Plaintiff's BRACl and BRAC2 tests reported negative
13 with no clinically significant mutations.
14 19.
15 Despite the fact the screening and genetic testing results were negative, Defendants
16 continued to misdiagnose Plaintiff as positive for Lynch Syndrome and the MLH-1 gene mutation.
17 On or about February 18, 2016, at Curry Community Health, Defendant Johns placed Plaintiff on
18 continuous birth control pills for sixty-three days in preparation of obtaining approval for a
19 hysterectomy.
20 20.
21 On or about April 12, 2016, Defendant Johns evaluated Plaintiff at Curry Community
22 Health. Defendant Johns incorrectly determined that Plaintiff had "MHLl Lynch Syndrome
23 cancer genes" and thereafter entered the same into Plaintiffs care Assessment and Plan.
24 Defendants continued to negligently rely upon the misinterpreted genetic testing results.
25 Defendants continued to negligently rely on the misdiagnosed Lynch Syndrome testing results,
26 and further, operated under the mistaken belief that Lynch Syndrome would make Plaintiff more
27 likely to have breast cancer.
28
COMPLAINT - Page 4
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 5
1 21.
2 Defendant Johns subsequently evaluated Plaintiff at Curry Community Health Center.
3 Defendant Johns noted that Defendant Fitts was planning to retire in December 2016, and that
4 Plaintiff was trying to learn about Lynch Syndrome. Because of Defendants negligence Plaintiff
5 believed that she had Lynch Syndrome, and further believed that Lynch Syndrome made it much
6 more likely that she would get breast cancer.
7 22.
8 - Defendant Johns evaluated Plaintiff at Curry Community Health in anticipation of her
9 hysterectomy. Defendant Johns determined and recommended that "[Plaintiff] needs to have a
10 mastectomy and needs to be referred to a surgeon in Medford. Allcare is willing to pay for the
11 reconstruction." She further noted, "With this Lynch syndrome [Plaintiff] needs to have bilateral
12 mastectomy in Medford."
13 23.
14 Defendant Fitts performed a History and Physical on Plaintiff on or about August 23, 2016.
15 In his report, Defendant Fitts noted that Plaintiff had Lynch Syndrome and that she was positive
16 for the MLHl gene variant, which he advised was "one of the mutations is associated with Lynch
17 syndrome," and that "her lifetime risk of breast cancer is at least 50%, ball bearing cancer 60-70%,
18 and endometrial cancer may be as high as 80%." Defendant Pitt's conclusions were not supported
19 by the genetic test results. Defendant Fitts also did not have a reasonable basis to associate Lynch
20 Syndrome with an increased risk of breast cancer.
21 24.
22 Defendant Fitts performed a total abdominal hysterectomy on Plaintiff on or about August
23 24, 2016. Plaintiff would not have consented to these procedures had she known that she did not
24 _have Lynch Syndrome. Plaintiff would not have consented to these procedures if she had known
25 that Lynch Syndrome does not cause a significant increase in the risk of breast cancer.
26 I I I
27 I I I
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COMPLAINT - Page 5
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 6
1 FIRST CLAIM FOR RELIEF
2 (Medical Malpractice/Negligent diagnosis and treatment-Against Defendants Johns,
3 Fitts, and Carlson)
4 25.
5 Plaintiff realleges and incorporates the allegations in paragraphs 1 through 24 herein.
6 26.
7 Defendants' care and treatment of Plaintiff fell below the standard of care of reasonable
8 and prudent licensed physicians and/or medical providers within the State of Oregon under the
9 same or similar circumstances in the following particulars:
10 (a) In failing to adequately and appropriately review and interpret genetic, pathology,
11 and diagnostic testing results, and in failing to provide to Plaintiff accurate reports and diagnoses
12 in connection with her purported decision to undertake surgical procedures;
13 (b) In negligently misconstruing Plaintiffs BRACl and BRAC2 test results, her Pap-
14 smear results, and in negligently misreporting the results of Plaintiffs mammogram test results,
15 and by incorporating them into Plaintiffs care and Assessment and Plan;
16 (c) In negligently misreporting Plaintiffs genetic testing results, and by incorporating
1 7 them into Plaintiffs care and Assessment and Plan;
18 (d) In failing to refer Plaintiff to a genetic counselor before or after undergoing testing
19 as recommended by the National Cancer Institute;
20 (e) In failing to properly diagnose Plaintiff under the diagnostic criteria for Lynch
21 Syndrome; and in misdiagnosing Lynch Syndrome as a cause for increased risk of breast cancer;
22 (f) In performing medically unnecessary and inappropriate surgical procedures,
23 including a complete hysterectomy on August 24, 2016, and a prophylactic bilateral nipple sparing
24 mastectomy with placement of implants on October 17, 2016, that were not indicated by any of
25 the test results and were based substantially if not entirely upon the misdiagnosis of Lynch
26 Syndrome; and
27 Ill
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COMPLAINT - Page 6
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 7
1 (g) In performing medically unnecessary and inappropriate prophylactic mastectomy
2 that was not indicated by any of the test results, and both the misdiagnosis of Lynch Syndrome
3 and incorrect assessment of its link to increased prevalence of breast cancer.
4 27.
5 As a direct and proximate result of Defendants' negligence, Plaintiff suffered permanent,
6 irreversible injuries to her body, economic and noneconomic damages in an amount to be proven
7 at trial, as more particularly alleged herein below.
8 SECOND CLAIM FOR RELIEF
9 (Medical Malpractice/Negligent diagnosis and treatment-against Defendant CCHD)
10 28.
11 Plaintiff realleges and incorporates the allegations in paragraphs 1 through 27 herein.
12 29.
13 Defendant's care and treatment of Plaintiff fell below the standard of care of a reasonable
14 and prudent licensed physician and/or medical provider within the State of Oregon under the same
15 or similar circumstance.sin the following particulars:
16 (a) In failing to adequately and appropriately review and interpret genetic, pathology,
17 and diagnostic testing results, and in failing to provide to Plaintiff accurate reports and diagnoses
18 in connection with her purported decision to undertake surgical procedures;
19 (b) In negligently misconstruing Plaintiffs BRACl and BRAC2 test results, her Pap-
20 smear results, in negligently misreporting the results of Plaintiffs mammogram test results, and
21 by incorporating them into Plaintiffs care and Assessment and Plan;
22 (c) In negligently misreporting Plaintiffs genetic testing results, and by incorporating
23 them into Plaintiffs care and Assessment and Plan;
24 (d) In failing to refer Plaintiff to a genetic counselor before or after undergoing testing
25 as recommended by the National Cancer Institute;
26 (e) In failing to properly diagnose Plaintiff under the diagnostic criteria for Lynch
27 Syndrome, and in misdiagnosing Lynch Syndrome as a cause for increased risk of breast cancer;
28
COMPLAINT - Page 7
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 8
1 (f) In performing medically unnecessary and inappropriate surgical procedures,
2 including a complete hysterectomy on August 24, 2016, and a prophylactic bilateral nipple sparing
3 mastectomy with placement of implants on October 17, 2016, that were not indicated by any of
4 the test results and were based substantially if not entirely upon the misdiagnosis of Lynch
5 Syndrome and;
6 (g) In performing medically unnecessary and inappropriate prophylactic mastectomy
7 that was not indicated by any of the test results, and both the misdiagnosis of Lynch Syndrome
8 and incorrect assessment of its link to increased prevalence of breast cancer.
9 30.
10 As a direct and proximate result of Defendants' negligence, Plaintiff suffered permanent,
11 irreversible injuries to her body, economic and noneconomic damages in an amount to be proven
12 at trial.
13 31.
14 The acts and omissions of Defendants as alleged were within the course and scope of their
15 employment with CCHD. CCHD is directly liable for such acts and omissions under the Oregon
16 Tort Claims Act. Plaintiff provided notice of her claim to all necessary parties pursuant to ORS
17 30.275.
18 THIRD CLAIM FOR RELIEF
19 (Medical Malpractice/Negligent diagnosis and treatment-against Defendant Curry
20 Community Health)
21 32.
22 Plaintiff realleges and incorporates the allegations in paragraphs 1 through 31 herein.
23 33.
24 Defendant's-and their employees'-care and treatment of Plaintiff fell below the
25 standard of care of a reasonable and prudent medical provider within the State of Oregon under
26 the same or similar circumstances in the following particulars:
27 I I I
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COMPLAINT - Page 8
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 9
1 (a) In failing to adequately and appropriately review and interpret genetic, pathology,
2 and diagnostic testing results, and in failing to provide to Plaintiff accurate reports and diagnoses
3 in connection with her purported decision to undertake surgical procedures;
4 (b) In negligently misconstruing Plaintiffs BRACl and BRAC2 test results, her Pap-
5 smear results, and in negligently misreporting the results of Plaintiffs mammogram test results,
6 and thereby incorporating them into Plaintiffs care and Assessment and Plan;
7 (c) In negligently misreporting the results of Plaintiffs genetic testing results, and
8 thereby incorporating the same into Plaintiffs care and Assessment and Plan;
9 (d) In failing to refer Plaintiff to a genetic counselor before or after undergoing testing
10 as recommended by the National Cancer Institute;
11 (e) In failing to properly diagnose Plaintiff under the diagnostic criteria for Lynch
12 Syndrome, and in misdiagnosing Lynch Syndrome as a cause for increased risk of breast cancer;
13 34.
14 As a direct and proximate result of Defendants' negligence, Plaintiff suffered permanent,
15 irreversible injury to her body, economic and noneconomic damages in an amount to be proven at
16 trial, as more particularly alleged herein below.
17 FOURTH CLAIM FOR RELIEF
18 (Medical Malpractice/Negligently performed mastectomy-against Defendant CCHD
19 and Defendant Carlson)
20 35.
21 Plaintiff realleges and incorporates the allegations in paragraphs 1 through 34 herein.
22 36.
23 Defendants' care and treatment of Plaintiff fell below the standard of care of a reasonable
24 and prudent licensed physician and/or medical provider within the State of Oregon under the same
25 or similar circumstances in the following particulars: ·
26 Ill
27 I/ I
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COMPLAINT - Page 9
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 10
1
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(a)
(b)
In failing to properly perform the mastectomy and placement of the implants;
In failing to properly treat extensive wound healing problems following the
3 mastectomy.
4 3~
5 As a direct and proximate result of Defendants' negligence, Plaintiff suffered permanent,
6 irreversible injury to her body, economic and noneconomic damages in an amount to be proven at
7 trial, as more particularly alleged herein below.
8 FIFTH CLAIM FOR RELIEF
9 (Medical Malpractice/Informed Consent-against all Defendants)
10 38.
11 Plaintiff realleges and incorporates the allegations in paragraphs 1 · through 3 7 herein.
12 39.
13 On multiple occasions, including June 30, 2016, and September 20, 2016, Plaintiff
14 communicated concerns and questions regarding Lynch Syndrome and its effects on herself and
15 her family.
16 40.
17 Plaintiff was not sufficiently informed about Lynch Syndrome or the meaning of her
18 genetic testing results. Despite the fact Plaintiff had requested additional information and
19 clarification on multiple occasions, Defendants failed to satisfy their duty to obtain Plaintiffs
20 informed consent for the surgical procedures she underwent in one or more of the following
21 particulars:
22
23
(a)
(b)
By failing to reasonably inform Plaintiff of the meaning of her diagnosis;
By failing to reasonably inform and explain to Plaintiff alternative procedures or
. 24 methods of treatment;
25 (c) By failing to inform. and explain to Plaintiff the risks of the surgical procedures.
26 Ill
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COMPLAINT - Page 10
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 3 98
Grants Pass, OR 97528 · 541-476-8825 Fax 541-471-1704
[email protected]
Page 11
1 41.
2 Plaintiff would not have consented to the mastectomy or hysterectomy had all material
3 risks, alternatives, correct test results and diagnoses been disclosed by Defendants.
4 ~
5 As a direct and proximate result of Defendants' negligence, Plaintiff suffered permanent,
6 irreversible injury to her body, economic and noneconomic damages in an amount to be proven at
7 trial.
8 SIXTH CLAIM FOR RELIEF
9 (Battery -against Defendants Fitts and Carlson)
10 43.
11 Plaintiffrealleges and incorporates the allegations in paragraphs 1 through 42 herein.
12 44.
13 Defendants Fitts and Carlson performed surgeries and procedures on Plaintiff without legal
14 and informed consent. Defendants acted with intentional and/or reckless disregard for professional
15 duties and Plaintiff's best interests.
16 45.
17 As a direct and proximate result of Defendants' negligence, Plaintiff suffered permanent,
18 irreversible injuries to her body, economic and noneconomic damages in an amount to be proven
19 at trial.
20 DAMAGES
21 (For all Claims)
22 46.
23 Plaintiffrealleges and incorporates paragraphs 1 through 45.
24 47.
25 At all times material, Defendants acted in concert in their treatment provided to Plaintiff.
26 Defendants' joint and coordinated treatment of Plaintiff renders Defendants jointly liable for the
27 negligence of each other.
28
COMPLAINT - Page 11
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 12
1 48.
2 As a result of Defendants actions Plaintiff has suffered permanent, irreversible injury to
3 her body, economic and noneconomic damages in an amount to be determined at trial.
4 49.
5 Plaintiff suffered noneconomic damages, including but not limited to:
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(a)
(b)
(c)
(d)
(e)
(f)
(g)
Ongoing severe chest wall pain since the initial breast surgery;
Menopause due to the performance of a total hysterectomy;
Mental and emotional suffering;
Humiliation and shame;
Extensive wound healing problems since the mastectomies;
Worry, fear and anguish;
Complete loss of her breasts, and substantial permanent disfigurement of her
13 breasts and skin;
14 50.
15 Plaintiff has suffered economic damages including medical expenses to treat the above-
16 mentioned injuries in an amount to be proven at trial.
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WHEREFORE, Plaintiff prays for judgment as follows:
1. Noneconomic damages against Defendant Curry County Health District in
an amount to be proven at trial not to exceed $1,800,000.00;
2. Noneconomic damages against Defendant Curry County Health District in
an amount to be proven at trial not to exceed $1,800,000.00;
3. On account of noneconomic damages against Defendants Curry
Community Health, and Johns, in an amount to be proven at trial not to
exceed $1,800,000.00,
COMPLAINT - Page 12
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 3 98
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
Page 13
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4. Economic damages against all Defendants, for past, present and future
medical costs and treatment, loss of income and employment, in an amount to
be proven at trial not to exceed $1,800,000.00;
5. Plaintiffs costs and disbursements; and
6. Any additional relief deemed appropriate and equitable.
Dated this 19th day of October, 2017.
COMPLAINT - Page 13
er L. Cauble, OSB #962374 [email protected] Max C. Whittington, OSB #154474 [email protected] Of Attorneys for Plaintiff
Cauble, Cauble & Selvig, LLP, Attorneys At Law 111 SE Sixth Street PO Box 398
Grants Pass, OR 97528 541-476-8825 Fax 541-471-1704
[email protected]
