But the. law also recognized the workman’s right to keep the two claims separate and to sue the employer for his negligence and the physician for the consequences of his malpractice.

physician.

We are aware of no reason why a negligent physician should not be held liable for his failure to have acted with reasonable care.

The joint answer of the defendants admitted that Doctor Sabin treated plaintiff as a physician but denied negligence or lack of skill.

of attending physicians, where they act honestly.”

The assumption that the physician was negligent in treating plaintiff is based upon the condition of the pleadings under the rule stated in Miller v. Houston, 27 Colo.

Winkler after September 18, 1951, but only instructed them that they could not return a verdict against appellant unless they found as a fact that one of these physicians was negligent.

Shapiro; and it is understandable that having, in their deliberations, found these physicians negligent, they did not realize that in order to return a verdict against appellant it was necessary to return one against the negligent

doctors.

In the first action, a patient of Shriners Hospital for Crippled Children complained of negligent treatment by Shriners and a physician working there for residency experience.

OHSU accepted the tender as to the doctor only and thereafter defended the doctor. Aetna defended Shriners after the state and OHSU declined. Patient’s negligence claim was settled before trial.

Aetna further alleges that patient claimed the injury was “sustained as a result of the negligence of [doctor].”

And, since it is most unlikely that the Commission, should it ever undertake to enforce the assigned claim, would recover anything, the holding of the majority substitutes as the beneficiary of the act the negligent physician in lieu

A workman who receives a slight scratch upon the hand while engaged in his work which, due to the negligence of a physician, becomes infected and eventually *Page 115 results in the amputation of his arm, is afforded no choice by

But recovery from the physicians for the second injury is entirely dependent upon the plaintiff's ability to prove negligence. We reiterate that the employer and the defendants were not joint tort feasors.

In count III, plaintiff alleged that he suffered harm as a result of the negligence of defendant doctors: “1.

The misleading representation, however, goes to the gravamen of two of plaintiffs specifications of negligence: that defendant doctors were negligent when they failed to read the x-rays which showed the existence of the screw and failed

*484 The alleged misrepresentation, however, does not go to the gravamen of plaintiffs three specifications that the doctors were negligent in performing the heart surgery.

Both parties agree that none of plaintiff’s prescribing or treating physicians were negligent in the treatment of plaintiff. ④ We find that plaintiff has offered no evidence, either direct or indirect, that she ever advised her

They are the same except that Ovulen-28 contains seven placebos so that the patient takes a pill every day. ④ Had the physicians been negligent in failing to detect symptoms of a stroke, which a nonnegligent physician would have

detected, such negligence would not relieve the drug manufacturer from liability for its failure to warn.

Huckleberry, 150 Or 538, 549 , 46 P2d 589 (1935) (physician who refers patient to another can be hable for negligence of other physician if that physician is an employee, partner, or agent of the referring physician, or if the referral

was itself negligent); Wemett v.

Bailey, 273 Or 273, 282 , 540 P2d 1398 (hospital has potential independent tort liability for negligent acts of physicians based on hospital’s own negligence in hiring and supervising staff).

to the jury and thereafter instructed the jury that plaintiff alleged the doctor was negligent "in the diagnosis, treatment, or referral of Steven Adams” and that a failure to use ordinary medical care, skill and diligence would constitute

negligence.

The court also instructed the jury that if the doctor was negligent in one of the allegations of negligence relating to diagnosis and in at least one of the allegations of negligence in regard to treatment and/or in failing to refer

If consent followed explanations sufficient for an ordinary reasonable patient, the physician was not negligent in this respect, and no issue of cause would arise.

If the explanation would not adequately inform such a patient, the physician might be found negligent, leaving the factual question whether the omission led to the patient’s consent.

If a jury finds that the omitted information would have been immaterial to a prudent patient’s decision, the physician (in a negligence case without ORS 677.097) would not be negligent in omitting it.

In these consolidated cases, plaintiffs appeal a summary judgment dismissing their negligence and wrongful death actions against physician Roger Smith (defendant).

According to him, an entire category of claimants — nonpatients—is prohibited from recovering against a physician for alleged acts of negligence in treating a patient.

He asks us to hold, as a matter of law, that a physician has no duty to third parties and, therefore, that a physician is shielded from liability to third parties who claim that the physician’s negligent treatment of a patient was

In this wrongful death action—which raises mul- tiple claims of medical negligence against physicians and others—we must decide two questions.

A failure to use such care, skill, or diligence is negligence. “Physicians are not negligent merely because their efforts were unsuccessful. A physician does not guarantee a good result by undertaking to perform a service.”

And instructing the jury to consider a consequence of its finding on the question of negligence risks confusing the jury about the standard that it must use to evaluate whether the physician was negligent.

The law assumes that all persons, including doctors, are not negligent until the contrary is proven.

The law sets the standard of care for physicians, and negligence is determined by whether that standard is met as the result of what one does or does not do rather than by what one knows or does not know.

The circumstances in this case were that the plaintiff was permitted to introduce expert testimony that the hospital was negligent in failing to call plaintiffs physician earlier.

Plaintiff did not allege in her complaint that the hospital was negligent in not calling her physician earlier and the jury was not instructed it could find negligence in this regard.

However, the plaintiff strongly argued to the jury, over defendant’s objection, that the hospital was negligent in not calling plaintiff’s doctor earlier. Under these circumstances we must find the error was reversible.

on the part of the physician treating it. ’ ’ That was a case where negligence was imputed to the defendant, a surgeon, in the treatment of a fractured arm.

The court further said: “Defendant requested an instruction to the effect that the fact that perfect or even good results were not obtained is not of itself any evidence that the physician was negligent, and that, in determining the

Negligence on the part of a physician consists in his doing something which he should not have done, or in omitting to do *467 something which he should have done.

The rule derives in part from the notion that a doctor does not promise a cure and that an untoward result might not be the result of negligence. See, e.g., Hills v. Shaw, 69 Or 460, 467 , 137 P 229 (1914); Langford v.

Nevertheless, the doctor is not liable for negligence if the treatment furnished is consistent with reasonable care.

*620 Sentences [4] and [5] are also unduly confusing. 5 To state that a doctor is not liable for bad results caused by an error of judgment makes it appear that some types of negligence are not culpable.

for indemnity, the physicians would be free to argue that they were not negligent at all in providing care and treatment to the decedent in this case.

were negligent.

Moreover, even in the absence of a contractual duty, the physicians would have a common-law duty to indemnify defendant if it is held vicariously liable, without negligence on its own part, for the physicians’ negligence.

In Zavalas, we held that the absence of a physician-patient relationship did not preclude nonpatients from recovering in negligence against the physician.

The plaintiffs — the representatives of the children who died or were injured in the accident and the parents of the injured children — brought a negligence action against the physician, alleging that the physician “was negligent in

’s negligent care of a patient”); cf.