Ordinary Negligence and Medical Professionals’ Liability to Nonpatients: Commentary on Stone v. Witt, 374 Or 524 (2025)

Ordinary Negligence and Medical Professionals’ Liability to Nonpatients: Commentary on Stone v. Witt, 374 Or 524 (2025)

I. Introduction

In Stone v. Witt, 374 Or 524 (2025), the Oregon Supreme Court squarely addressed whether doctors and pharmacists who negligently prescribe or dispense controlled substances to a patient can be held liable in negligence to a nonpatient injured by that patient’s later conduct. The Court’s answer is yes, at least at the pleading stage: ordinary negligence principles apply, and no special relationship between the medical professional and the injured third party is required when the claim is for physical harm allegedly caused by the providers’ unreasonable creation of a foreseeable risk.

The facts are stark. Medical providers and a pharmacy allegedly prescribed and dispensed highly addictive medications—Clonazepam, Carisoprodol, and Hydrocodone—to their patient, Witt, despite knowing or having reason to know that she abused those drugs and had developed a substance use disorder. While impaired, Witt crossed the center line on a rural highway and fatally struck a cyclist, Stone. The decedent’s estate sued the providers and the pharmacy for wrongful death, asserting negligence in prescribing, dispensing, and failing to warn about the risks of driving while impaired.

The trial court dismissed the claims against the medical defendants, accepting their contention that medical professionals owe duties only to their patients (or those in a special relationship) and therefore cannot be liable to nonpatient third parties for professional negligence. The Court of Appeals reversed, relying heavily on its own prior decision in Zavalas v. Dept. of Corrections, 124 Or App 166, 861 P2d 1026 (1993), which had allowed claims against a physician whose negligent prescribing allegedly led a patient to injure nonpatients while driving under the influence of medication.

On review, the Oregon Supreme Court (en banc) affirmed the Court of Appeals and reversed the trial court’s dismissal. Chief Justice Flynn authored the majority opinion; Justices Garrett and Bushong filed separate concurrences. Together, the opinions both reaffirm and sharpen Oregon’s distinctive negligence framework, especially the divide between “ordinary” and “special” negligence, and definitively reject a categorical rule insulating medical professionals from liability to nonpatients for physical injuries caused by their negligent prescribing or dispensing.

II. Summary of the Opinion

A. The Core Holding

The Court holds that the plaintiff’s complaint states a viable claim of common-law negligence (and thus wrongful death under ORS 30.020) against the medical providers and the pharmacy. The key propositions are:

  • In Oregon, the default rule for “ordinary negligence” is that any person is liable for physical harm resulting from conduct that unreasonably created a foreseeable risk of the kind of harm that occurred, to a legally protected interest (here, freedom from physical harm to person).
  • That rule does not depend on a special relationship between defendant and plaintiff; it applies “between strangers” as well.
  • Medical professionals are not exempt from this ordinary negligence regime when their conduct in treating a patient allegedly creates a foreseeable risk of physical injury to nonpatients.
  • The physician–patient or pharmacist–patient relationship, and statutes or rules that define professional standards of care (e.g., ORS 677.095; OAR 855‑115‑0105(1)), may:
    • Expand duties (e.g., to protect emotional or economic interests, or to affirmatively act to diagnose or treat), and
    • Define the applicable standard of care,
    but they do not create an immunity or “protective bubble” that limits liability to patients only.

Thus, a nonpatient third party like Stone can sue medical providers and a pharmacy under ordinary negligence principles when it is alleged that their substandard professional conduct unreasonably created a foreseeable risk that their patient would cause physical harm—here, by driving while drug-impaired.

B. Application to the Complaint

Accepting the complaint’s allegations as true (as required on a motion to dismiss), the Court concludes:

  • The defendants prescribed and dispensed highly addictive controlled substances to Witt in quantities beyond what was medically needed and despite knowing or having reason to know she had a substance abuse problem and was engaging in drug-seeking behavior.
  • They failed to adequately warn Witt against driving while using those medications, despite knowing or having reason to know that long-term use risked dependence, misuse, and impaired driving.
  • It was reasonably foreseeable that a patient with a substance use disorder related to prescribed drugs might overuse the drugs, drive while impaired, and injure others on the road.
  • The plaintiff alleged that each defendant’s conduct was a cause of the eventual collision that killed Stone.

Those allegations, if proved with sufficient expert and factual evidence, would permit a reasonable jury to find that defendants’ conduct unreasonably created a foreseeable risk of the kind of harm that befell Stone and that their conduct factually and legally caused her death. That is sufficient to state an ordinary negligence claim under Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987), and its progeny.

C. What the Court Does Not Decide

The decision is strictly about the sufficiency of the pleadings. The Court does not decide:

  • That defendants in fact breached the professional standard of care (that is a merits question, to be proven by expert testimony).
  • That the alleged negligence actually caused Stone’s death (another merits and causation question for the factfinder).
  • That liability will always attach whenever a patient later injures a third party after receiving a prescription—only that liability is not categorically barred when the plaintiff is a nonpatient and the harm is physical.

Justice Garrett’s concurrence underscores that there can be no negligence liability—to patient or nonpatient—if the physician or pharmacist complied with the applicable standard of care. Justice Bushong’s concurrence agrees with the outcome but contests the majority’s formulation of the elements of ordinary negligence, arguing that “creation of the risk” should not be treated as a required element.

III. Detailed Analysis

A. The Oregon Negligence Framework Reaffirmed

1. The Fazzolari Paradigm: Ordinary vs Special Negligence

The opinion builds upon, and clarifies, the framework articulated in Fazzolari. That landmark case reoriented Oregon negligence law away from rigid “duty” formulations and toward a unified foreseeability-based test for the scope of liability:

“[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting 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 plaintiff.” – Fazzolari, 303 Or at 17

From this, the Court in Stone draws a categorical distinction:

  • Ordinary negligence claims:
    • Do not depend on a special status or relationship;
    • Concern the general, universal obligation that “everyone owes each other … to act reasonably in light of foreseeable risks of harm”; and
    • Require the plaintiff to plead and prove that the defendant’s conduct unreasonably created a foreseeable risk of the kind of physical harm that occurred, to a legally protected interest.
  • Special negligence claims:
    • Arise when a plaintiff seeks recovery for categories of harm ordinarily excluded from negligence liability, such as:
      • Purely economic loss, or
      • Purely emotional distress, or
      • Harm from a defendant’s mere failure to act (e.g., failure to rescue), where the defendant did not create the risk.
    • Require the plaintiff to allege and prove special circumstances (e.g., a legislatively imposed duty, a court order, or a special relationship) that justify imposing liability beyond the ordinary rule.

In short, ordinary negligence is the baseline rule for physical injury claims grounded in misfeasance (affirmative acts that create or increase risk), while special negligence is required to reach:

  • Purely economic or emotional harms, and/or
  • Nonfeasance (failure to protect from risks the defendant did not create).

2. Protected Interests: Physical vs Economic/Emotional Harm

The Court reiterates a key corollary: the most basic legally protected interest is freedom from physical harm:

“In Oregon, all persons have a legally protected interest to be free from physical harm at the hands of another.” – Scott v. Kesselring, 370 Or 1, 17, 513 P3d 581 (2022), quoted in Stone

Accordingly:

  • Physical harm (to body or property): Ordinarily recoverable under common-law negligence, without special relationship, if the Fazzolari test is satisfied.
  • Purely emotional or economic harm:
    • Ordinarily not recoverable, even when predictable.
    • Recovery allowed only when there is some separate, legally protected interest (e.g., based on statute, court order, or special relationship) that justifies extending liability beyond the baseline rule. The Court cites:
      • Philibert v. Kluser, 360 Or 698, 385 P3d 1038 (2016);
      • Moody v. Oregon Community Credit Union, 371 Or 772, 542 P3d 24 (2023);
      • McEvoy v. Helikson, 277 Or 781, 562 P2d 540 (1977) (attorney violated court order);
      • Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983) (police violated statutory duty to enforce restraining order);
      • Curtis v. MRI Imaging Services II, 327 Or 9, 956 P2d 960 (1998) (emotional distress claim against medical professional);
      • Zehr v. Haugen, 318 Or 647, 871 P2d 1006 (1994) (economic loss claim).

3. Misfeasance vs Nonfeasance; “Creation of the Risk”

The majority underscores that the “creation of risk” concept marks the boundary between:

  • Misfeasance: affirmative conduct that creates or increases a risk of harm (ordinary negligence applies); and
  • Nonfeasance: failure to act (e.g., failure to rescue or to protect from a risk the defendant did not create), where liability generally requires a special duty (e.g., from a special relationship).

The Court aligns itself with the Restatement (Third) of Torts, defining risk-creation broadly:

“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 faced absent the conduct.” – 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 cmt. o (2010), quoted in Stone

Thus, conduct can “create” or increase risk even if:

  • The defendant is not the sole or “original” cause, and
  • Other actors (including third parties, even criminals) also contribute to the ultimate harm.

This is consistent with pre‑ and post‑Fazzolari cases:

  • Mezyk v. National Repossessions, 241 Or 333, 405 P2d 840 (1965): leaving keys in a car can create a foreseeable risk of theft and negligent driving.
  • Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977): tavernkeeper may be negligent in serving a visibly intoxicated patron due to foreseeable risk of impaired driving.
  • Deckard v. Bunch, 358 Or 754, 370 P3d 478 (2016): serving alcohol to a visibly intoxicated guest who then injures a third party can ground a negligence claim.
  • Haas v. Estate of Carter, 370 Or 742, 525 P3d 451 (2023): multiple tortfeasors may all be liable if each contributes to the harm.

Chief Justice Flynn’s majority thus maintains that, for ordinary negligence, a plaintiff must allege that the defendant’s conduct unreasonably created a foreseeable risk of the type of physical harm suffered.

4. Justice Bushong’s Critique

Justice Bushong concurs in the result but challenges the majority’s insistence that “creation of the risk” is a required element of an ordinary negligence claim. In his view:

  • Foreseeability of risk (what the defendant knew or reasonably should have known) and duty (whether the law imposes an obligation) are distinct concepts that should not be fused.
  • To state an ordinary negligence claim, a plaintiff need only allege:
    1. Negligent conduct (act or omission not meeting reasonable care);
    2. That such conduct caused the plaintiff’s harm; and
    3. That the type of harm was reasonably foreseeable to the defendant (based on what the defendant knew or should have known).
  • Whether the defendant’s conduct “created” the risk is not, and should not be, a separate element; risk may pre‑exist and still be foreseeable.

He argues that Fazzolari’s famous sentence was a summary of liability’s outer bounds, not a precise list of elements of a negligence claim, and warns that over‑emphasizing “creation of the risk”:

  • Risks reintroducing “duty” as a threshold legal barrier similar to the Restatement (Third)’s “duty arises when conduct creates a risk” approach that Fazzolari had moved away from, and
  • Could invite courts to dismiss claims where the defendant plainly knew of a risk but did not “create” it, undermining the role of juries in deciding foreseeability.

He emphasizes that in Fazzolari itself, the school district’s liability for a sexual assault on school grounds turned on its knowledge of prior assaults (foreseeability), not on the notion that it “created” the risk of assault. He also carefully reviews Chapman and Piazza, explaining that both cases focus on what the defendant knew or should have known about the risk posed by third-party criminal actors, not on whether the defendant “created” that risk.

In short, the Court has now exposed an internal tension in Oregon’s negligence doctrine: whether “creation of the risk” is analytically necessary as part of the elements of ordinary negligence, or whether foreseeability and causation suffice, with “duty” questions reserved for special categories and limitations. The majority and Bushong concur agree on the outcome in Stone, but offer competing blueprints for future negligence analysis.

B. Precedents and Their Role in the Decision

1. Fazzolari v. Portland School Dist. No. 1J (1987)

Fazzolari is the lynchpin of modern Oregon negligence law. A student was raped on school grounds, and the issue was whether the school district owed a duty to protect her against third-party criminal conduct. The Court:

  • De‑emphasized “duty” as an independent element in ordinary negligence claims.
  • Reframed the analysis in terms of foreseeability of the type of harm and reasonable conduct in light of that foreseeability.
  • Explained that special relationships or statutes can still “create, define, or limit” duties, but that in their absence, liability turns on the Fazzolari foreseeability test.

Stone leans heavily on this structure, explicitly categorizing claims into:

  • Ordinary negligence (foreseeable physical harm from risk-creating conduct), and
  • Special negligence (extraordinary categories of harm or nonfeasance).

2. Sloan v. Providence Health Systems–Oregon (2019)

Sloan involved a medical negligence claim against a doctor who allegedly failed to diagnose internal bleeding. The Court reaffirmed that an ordinary negligence claim requires a plaintiff to show:

  • The defendant’s conduct created a foreseeable and unreasonable risk of legally cognizable harm, and
  • The conduct in fact caused that kind of harm.

Stone quotes Sloan and applies the same framework to the medical context here, emphasizing that even when professional relationships are involved, ordinary negligence principles govern claims for physical harm resulting from misfeasance (such as negligent prescribing).

3. Scott v. Kesselring (2022)

In Scott, a rear-end collision case, the Court treated the claim as an ordinary negligence claim and cited Fazzolari’s test, noting that where no special relationship or standard is invoked, the plaintiff must establish that the defendant’s conduct unreasonably created a foreseeable risk of harm.

Stone relies on Scott to support its classification of the plaintiff’s theory as ordinary negligence, not dependent on proof of a special relationship.

4. Chapman v. Mayfield (2015) and Piazza v. Kellim (2016)

These cases discuss foreseeability where the harm results from third-party wrongful or criminal conduct:

  • Chapman:
    • Bar served alcohol to an already intoxicated patron (Mayfield) who later unintentionally shot the plaintiffs.
    • The Court held the specific chain of events (unintentional shooting in another location) was not reasonably foreseeable on the facts presented; summary judgment for the bar was affirmed.
    • Critically, the analysis focused on whether the bar knew or should have known of a risk of that sort of harm—even though its conduct plainly increased risk (by serving alcohol).
  • Piazza:
    • A foreign exchange student was shot while standing in line outside a teen nightclub.
    • Given a history of violent incidents in and around the club, it was reasonably foreseeable that a violent assault might occur.
    • The Court reinstated negligence claims against the club owners and supervisors, again focusing on what risk was reasonably foreseeable in light of known facts.

Stone extends this line of reasoning to medical professionals: just as bar owners and nightclub operators must account for foreseeable risks posed by intoxicated or violent third parties, medical providers must account for foreseeable risks that their prescribing and dispensing practices may lead patients to drive while impaired and injure others.

5. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP (2004)

Oregon Steel Mills dealt primarily with economic loss and accountants’ liability. It is invoked in Stone to illustrate:

  • That foreseeability of harm is the primary limiting principle in ordinary negligence, and
  • That special relationships or standards can “create, define, or limit” duties in special negligence cases (e.g., for pure economic loss).

This supports Stone’s view that medical professionals’ special relationship with patients tends to expand obligations (e.g., to protect economic/emotional interests, or to act affirmatively), not to contract their basic obligations to the rest of the world in ordinary physical-injury cases.

6. Mead v. Legacy Health System (2012)

Mead is central to the defendants’ argument and to the Court’s rejection of a limitation on liability. In Mead:

  • An on-call neurosurgeon advised an emergency physician by phone; the plaintiff later developed severe nerve damage alleged to be due to delayed treatment.
  • The jury found no physician–patient relationship; the Court affirmed, stating that in Oregon, “a physician-patient relationship is a necessary predicate to stating a medical malpractice claim.”

Defendants in Stone seized on that statement to argue that all professional negligence claims against medical providers require a physician–patient relationship. The Court in Stone explains why that reading is mistaken:

  • Mead involved a failure-to-act claim (nonfeasance)—a neurosurgeon’s alleged failure to intervene, diagnose, or treat.
  • Liability in that situation is a form of special negligence, requiring a special relationship (such as a physician–patient relationship) to justify imposing an affirmative duty to protect the plaintiff from risk the defendant did not create.
  • Accordingly, the Mead statement about the necessity of a physician–patient relationship must be understood as limited to that context: claims based on failure to act in providing professional care to the would‑be patient.

By contrast, Stone is about alleged misfeasance—affirmative prescribing and dispensing practices that allegedly created or increased a risk to third parties. Under Fazzolari, no special relationship is required in that kind of ordinary negligence claim, so Mead is inapposite as a basis to bar the lawsuit.

7. Tomlinson v. Metropolitan Pediatrics, LLC (2018)

Tomlinson is also pivotal. There, parents alleged that physicians negligently failed to diagnose their older child’s genetic disorder; they later had a second child who was born with the same disorder. The parents sought damages for emotional and economic harm arising from having a second child with the disorder, asserting a claim despite not being the physicians’ patients.

The Court held:

  • Ordinary negligence principles could not directly supply liability, because:
    • The parents alleged only economic and emotional harm, and
    • The alleged harm resulted from the physicians’ failure to protect them from a risk (their genetics) that the physicians did not create.
  • However, the parents were in a special relationship with the physicians, as guardians of the older child:
    • They reasonably expected to receive genetic information relevant to family planning.
    • This relationship justified imposing an affirmative obligation to warn the parents of the genetic risk.

In Stone, defendants argued that Tomlinson established a detailed set of criteria that must be satisfied to recognize any duty by medical providers to nonpatients. The Court rejects that reading:

  • Tomlinson was carefully confined to a special context: extending liability for purely economic and emotional harms, and for harms caused by failure to warn of risks the physicians did not themselves create.
  • There, special relationship analysis was needed because those harms are outside the scope of ordinary negligence.
  • Stone is different: it involves physical harm (death) allegedly caused by the providers’ own misfeasance in treating a patient. No special relationship between providers and the injured third party is required in such circumstances.

Thus, Tomlinson is recast as a case about when to recognize special negligence duties, not about restricting ordinary negligence claims against medical professionals to patients or quasi‑patients.

8. Other Authorities: Landlords, Statutes, and Professional Standards

Several other cases are used to illustrate how statutes and professional standards fit into ordinary negligence:

  • Bellikka v. Green, 306 Or 630, 762 P2d 997 (1988):
    • A landlord’s statutory duties under the Residential Landlord and Tenant Act help define the standard of care owed not only to tenants but also to third parties injured on the premises.
    • The statute can be used to show what care a reasonably prudent landlord must exercise, even though the plaintiff was not in privity with the landlord.
    • Stone analogizes: ORS 677.095 and pharmacy regulations define the standard of care for medical professionals but do not limit who may sue for physical harm caused by substandard care.
  • Professional standard-of-care cases:
    • Moulton v. Huckleberry, 150 Or 538, 46 P2d 589 (1935);
    • Carruthers v. Phillips, 169 Or 636, 131 P2d 193 (1942);
    • Trees v. Ordonez, 354 Or 197, 311 P3d 848 (2013).
    These cases, together with ORS 677.095 and OAR 855‑115‑0105(1), establish that:
    • Professional negligence is judged by what “ordinarily careful” physicians or pharmacists do in the same or similar circumstances, in the relevant community.
    • Expert testimony is usually required to prove breach of that standard.
    • But these standards are still embedded within the Fazzolari framework; they define “reasonableness,” not the existence or scope of duty to third parties.

9. Restatement (Third) and Out-of-State Decisions

The Court also notes supportive commentary from the Restatement (Third) of Torts, particularly:

  • 1 Restatement (Third) § 7: general duty to exercise reasonable care when conduct creates a risk of physical harm.
  • 2 Restatement (Third) § 41 cmt. h: medical care may create risks to third parties, e.g., prescribing inappropriate medication that impairs the patient and leads to harm to others.

Other states have taken varied approaches to physician liability for harm to third parties from prescribed medications. Some, like Massachusetts (Medina v. Hochberg) and Hawaii (McKenzie v. Hawai'i Permanente Med. Grp., Inc.), recognize such liability as misfeasance. Others, like Tennessee (Burroughs v. Magee), attempt to draw lines between prescribing choices and warnings. Stone notes these approaches but ultimately grounds its holding squarely in Oregon’s own Fazzolari-based doctrine.

C. The Court’s Legal Reasoning Applied to the Medical Context

1. Does This Claim Require a Special Relationship?

The first key question is whether the plaintiff’s theory is one of ordinary negligence—or whether, because it involves physicians and a pharmacist, it instead requires a special relationship/duty as in Mead or Tomlinson.

The majority answers:

  • The plaintiff alleges physical harm (wrongful death).
  • The alleged negligence is misfeasance: overprescribing, dispensing addictive medications despite red flags, and failing to warn about driving risks.
  • The alleged harm to Stone is a foreseeable type of harm arising out of that misfeasance: a drug-impaired patient driving and striking another road user.

Those allegations fall squarely within the ordinary negligence framework. No special relationship between the medical professionals and Stone is needed. The alleged physician‑patient and pharmacist‑patient relationships with Witt:

  • Do give rise to heightened obligations toward Witt (e.g., to diagnose, warn, protect emotional or economic interests), and
  • Define the professional standard of care,

but they do not cabin ordinary negligence liability where positive acts unreasonably and foreseeably endanger third-party physical safety.

2. Role of Professional Standards: Not a Source of Duty, But a Measure of Reasonableness

The defendants argued that ORS 677.095 (physicians) and OAR 855‑019‑0200 (now OAR 855‑115‑0105(1) for pharmacists) are the “source” of any duty of care and that, per Mead, those duties run only to patients. The Court responds:

  • ORS 677.095 “essentially codified the common-law standard” articulated in earlier cases; it did not create a new, separate cause of action or limit the universe of potential plaintiffs.
  • The professional regulations likewise define how a reasonable practitioner behaves but do not specify to whom the practitioner must act reasonably.
  • Under Oregon law, once a negligence claim is otherwise viable, such statutes and rules:
    • Help establish the standard of care (what is reasonable),
    • May indicate which risks a careful professional should have considered, and
    • Can show whether the defendant met or failed that standard.

Thus, a physician or pharmacist owes the general obligation to avoid unreasonably creating foreseeable risks of physical harm to others, and that obligation is to be interpreted and applied through the lens of professional standards, not limited by them to patients alone.

3. Foreseeability of Third-Party Conduct

Defendants stressed that it would be unfair to hold them liable for harms ultimately caused by Witt, whose later choices (driving impaired) they could not control. But under Oregon law:

  • Intervening conduct, including criminal acts, does not automatically break the chain of liability; it is treated as part of the foreseeability analysis.
  • As Fazzolari observed, third-party crime was once seen as beyond a defendant’s responsibility, but modern decisions embed such conduct into the general foreseeable-risk inquiry.
  • Deckard confirms that serving an intoxicated guest who later injures another in a car crash can be an actionable cause of harm if that outcome was reasonably foreseeable.

Here, plaintiff alleges that defendants knew or should have known that:

  • The prescribed drugs were highly addictive and impairing;
  • Witt had substance abuse problems and was misusing or seeking excessive amounts of the drugs;
  • Long-term use could lead to dependence and dangerous misuse; and
  • As a result, Witt was likely to misuse the drugs and drive while impaired, endangering other road users such as Stone.

Under the forgiving dismissal standard, those allegations are sufficient to allow a jury to find that injuries from Witt’s impaired driving were within the scope of foreseeable risks that defendants’ alleged negligence unreasonably created. The fact that Witt’s choices were the immediate cause does not immunize defendants if their prior acts foreseeably and unreasonably contributed to the risk.

4. Responding to Policy Concerns and Proposed Exceptions

Defendants and amici (Oregon Medical Association, American Medical Association, and National Association of Chain Drug Stores) raised several policy arguments to support a categorical rule limiting liability to patients:

  • Complexity of medical decisions: prescribing controlled substances involves balancing many factors for the benefit of the patient; requiring consideration of third-party interests may distort clinical judgment.
  • Divided loyalties: fear that physicians will place nonpatients’ interests above those of the patient, undermining trust in the exam room.
  • Lack of control over patients: providers cannot control whether patients drive or misuse medications; it is unfair to hold them responsible for patients’ independent wrongful acts.

The Court’s responses are multi-layered:

  • Standard-of-care as safeguard:
    • Physicians and pharmacists are liable only when their conduct falls below the standard of “ordinarily careful” professionals in the same or similar circumstances.
    • The complexity of treatment decisions is already built into that standard; juries will hear expert testimony on what reasonably careful prescribing or dispensing entails.
    • If a provider complied with the standard of care, there is no negligence liability—to patient or nonpatient. Justice Garrett’s concurrence emphasizes this point.
  • No inherent patient–third-party conflict:
    • In the impaired driving context, the patient herself is also at risk; protecting third parties from the patient’s drug-induced impairment also protects the patient.
    • Thus, considering risks to the driving public often aligns with, rather than competes with, the patient’s interests.
  • Foreseeability limits liability:
    • Providers are not insurers against all harm; they are only liable when the type of harm suffered by the plaintiff was reasonably foreseeable.
    • As in Chapman and Buchler, where unforeseeable chains of criminal conduct break liability, courts can still find that particular harms are too attenuated to be within the scope of risk created.
  • No special carve‑out for medical professionals:
    • Under Oregon law, everyone is expected to act reasonably in light of foreseeable risks of physical harm; the Court sees no principled reason to grant medical professionals a categorical exemption when their negligent acts foreseeably endanger the public.
    • If such an immunity or limitation is desirable as a matter of policy, the Court suggests it is for the legislature, not the judiciary, to create, as Justice Garrett’s concurrence notes.

D. Impact and Implications

1. For Medical Professionals and Pharmacies

Stone has significant consequences for physicians, other prescribers, and pharmacists in Oregon:

  • Expanded potential plaintiff class:
    • Nonpatients injured by a patient’s conduct may now bring ordinary negligence claims against prescribing or dispensing professionals, so long as they can allege and ultimately prove:
      • Breach of the professional standard of care,
      • Foreseeability that the breach would create a risk of the kind of harm suffered, and
      • Causation linking the breach to the injury.
  • Heightened focus on prescribing and dispensing practices:
    • Providers will likely need to:
      • Document awareness of substance use histories and red flags;
      • Comply meticulous­ly with guidelines on controlled substances and PDMP (if applicable);
      • Warn patients adequately about driving and other safety-sensitive activities while taking impairing medications.
    • Failure in these respects—if outside professional norms—may not only expose providers to claims from patients but now also from injured third parties.
  • Insurance and risk management:
    • Malpractice insurers may respond by recalibrating premiums and recommending more robust risk-management protocols, especially regarding opioids, benzodiazepines, and other CNS depressants.
    • Chain pharmacies, as indicated by NACDS’s amicus brief, may revisit corporate dispensing policies and pharmacist training.

2. For Negligence Doctrine in Oregon

Doctrinally, Stone:

  • Reinforces the Fazzolari framework as the central organizing principle for negligence:
    • Ordinary negligence for physical harms caused by misfeasance;
    • Special negligence, requiring special circumstances, for pure economic/emotional harms and nonfeasance/failure-to-protect claims.
  • Clarifies the meaning and role of “special relationships”:
    • They can expand duties (as in Tomlinson)—allowing nonpatients to recover for emotional or economic harms or for failures to warn of pre‑existing risks.
    • They do not, however, shrink baseline ordinary negligence duties owed to the world at large in cases of misfeasance causing physical harm.
  • Resolves ambiguity in Mead:
    • The oft‑quoted statement that a physician–patient relationship is a necessary predicate to “medical malpractice” is confined to nonfeasance claims and does not bar misfeasance-based claims by nonpatients.
  • Exposes an internal debate over the role of “creation of risk”:
    • The majority treats risk-creation as part of the definition of an ordinary negligence claim.
    • Justice Bushong warns against conflating that notion with duty and suggests that foreseeability and causation should suffice without requiring a separate finding that the defendant’s conduct “created” the risk.
    • This debate may influence future cases involving bystanders, omissions, or pre-existing risks.

3. For Future Litigation Involving Controlled Substances and Impaired Driving

Stone likely opens the door to more lawsuits by third parties injured by patients under the influence of:

  • Opioids, benzodiazepines, muscle relaxants, sedative-hypnotics, and similar medications.
  • Potentially psychoactive medications where impairment and risk of dangerous conduct are known or should be known to prescribers and pharmacists.

Litigants will likely focus on:

  • The quality and content of warnings given to patients (or failure to warn);
  • Recognized standards for prescribing controlled substances in high-risk populations;
  • Pharmacies’ role in detecting and checking for:
    • Excessive quantities, early refills, multiple prescribers, and doctor-shopping;
    • PDMP results (where relevant) indicating high risk of misuse or overdose.
  • Evidence that the providers were, or should have been, aware of particular patients’ ongoing impairment and driving habits.

At the same time, the foreseeability and professional-standard-of-care requirements remain substantial hurdles; Stone does not guarantee liability, only access to the courthouse for claims that plausibly fit within ordinary negligence principles.

4. Role of the Legislature

Justice Garrett’s concurrence acknowledges the force of the policy concerns about divided loyalties and the potential chilling effect on prescribing, but concludes those are questions better suited for legislative resolution. If the Oregon Legislature were to:

  • Grant partial immunities,
  • Define precise boundaries for third-party claims, or
  • Impose particular risk-management obligations or safe harbors,

those statutory choices would then feed back into the Fazzolari framework—either as limits on liability (like recreational immunity statutes and dram shop limitations) or as new bases for special negligence duties. Absent such action, Stone makes clear that general common-law principles govern.

IV. Complex Concepts Simplified

A. “Ordinary” vs “Special” Negligence

  • Ordinary negligence:
    • Applies when:
      • The plaintiff seeks compensation for physical harm (to body or property); and
      • The defendant engaged in misfeasance—affirmative conduct alleged to have created or increased risk.
    • The plaintiff does not need to allege a special relationship or special status.
    • The test is:
      • Did the defendant act unreasonably in light of foreseeable risks of the kind of harm suffered?
      • Did that unreasonable conduct cause the plaintiff’s harm?
  • Special negligence:
    • Comes into play when the plaintiff:
      • Seeks to recover for purely economic loss (e.g., lost profits);
      • Seeks for purely emotional distress (without physical injury); or
      • Claims that the defendant should have acted to protect them from a risk the defendant did not create (e.g., failure to rescue, failure to enforce a restraining order).
    • Here, the plaintiff must show some extra justification—a statute, court order, or special relationship (e.g., doctor–patient, lawyer–client, landlord–tenant, police–protected person)—that creates a duty to protect those particular interests.

B. Duty, Foreseeability, and Causation

  • Duty:
    • In everyday speech: a legal obligation to take care.
    • In Oregon:
      • For ordinary negligence claims, the “duty” is almost always present: everyone must act reasonably to avoid foreseeable physical harm to others.
      • “Duty” becomes a distinct legal issue in special negligence claims—where the question is whether the law should extend liability beyond that baseline (for emotional harm, economic loss, or failures to act).
  • Foreseeability:
    • About what might happen if the defendant acts or fails to act in a certain way.
    • Key question: Given what the defendant knew or should have known at the time, was it reasonably predictable that this type of harm could occur to a person situated like the plaintiff?
    • Foreseeability is usually a question for the jury, unless no reasonable juror could find the harm foreseeable.
  • Causation:
    • About what actually happened after the defendant’s conduct.
    • Two aspects:
      • Factual causation: Did the defendant’s conduct in fact contribute to the harm (e.g., “but for” the conduct, would the harm have occurred)?
      • Scope of liability: Is the harm one of the foreseeable risks that made the conduct unreasonable in the first place?

C. Misfeasance vs Nonfeasance (Action vs Inaction)

  • Misfeasance: doing something that creates or increases a risk (negligent driving, negligent prescribing, serving a visibly intoxicated patron, leaving keys in a car).
  • Nonfeasance: failing to act when action might prevent harm (failing to rescue, failing to call police, failing to enforce a restraining order, failing to diagnose an existing medical condition).

Under Oregon law:

  • Ordinary negligence primarily covers misfeasance causing physical harm.
  • Nonfeasance generally creates liability only when a special relationship or statute imposes a duty to act (as in Mead, Tomlinson, Nearing).

D. Standard of Care for Medical Professionals

For physicians (ORS 677.095(1)) and pharmacists (OAR 855‑115‑0105(1)), the standard of care is:

  • The degree of care, skill, diligence, and professional judgment used by an “ordinarily careful” professional in the same or similar circumstances, in the same or similar community.
  • Reasonableness is assessed within the context of professional norms and expectations, not common lay behavior.
  • Expert testimony is typically required to establish:
    • What the standard of care was at the time; and
    • Whether the defendant’s conduct fell below that standard.

Stone does not lower these professional standards; it simply clarifies that if a professional’s conduct falls short and causes foreseeable physical harm to a nonpatient, ordinary negligence liability may attach.

V. Conclusion: Significance of Stone v. Witt

Stone v. Witt is a major negligence and medical liability decision with two intertwined legacies.

First, it firmly establishes that medical professionals in Oregon owe the same baseline obligation as everyone else: not to unreasonably create foreseeable risks of physical harm to others, including nonpatients. The existence of a physician–patient or pharmacist–patient relationship may expand duties toward the patient, and statutes define the professional standard of care, but neither creates an immunity for harms done to third parties when a professional’s misfeasance foreseeably endangers them. In practical terms, negligent prescribing and dispensing practices that foreseeably contribute to impaired driving can expose providers to liability not only to their patients but also to the innocent victims of those patients’ conduct.

Second, the decision deepens and clarifies Oregon’s distinctive Fazzolari-based negligence doctrine. The Court:

  • Reaffirms the centrality of foreseeability and risk-creation in ordinary negligence,
  • Clarifies the role of special relationships and statutes in creating or limiting duties for special negligence claims,
  • Cabins earlier medical cases—especially Mead and Tomlinson—to their specific contexts, and
  • Surfaces an important internal debate over whether “creation of the risk” is an element of ordinary negligence or merely a descriptive limit on liability.

Justice Garrett’s concurrence underscores that the decision is not a blank check for third-party claims: if physicians and pharmacists comply with their professional standards of care, they are not liable to anyone—patient or nonpatient. Justice Bushong’s concurrence invites further doctrinal refinement of the relationship between duty, foreseeability, and risk-creation in future cases.

Absent legislative intervention, Stone will shape the contours of medical liability in Oregon for years to come, particularly in cases involving controlled substances and impaired driving. It sends a clear message that the common law does not insulate professional decision-making from its reasonably foreseeable physical consequences to the public, and that negligence principles apply in the medical realm much as they do elsewhere: with foreseeability and reasonableness as the guiding lights, and the jury as the ultimate arbiter of disputed facts.

Case Details

Year: 2025
Court: Supreme Court of Oregon

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