Whinston v. Kaiser Foundation Hosp., 309 Or 350 (1990).

Wagner v. Kaiser Foundation Hospitals, 285 Or 81 (1979).

Plaintiff’s complaint alleging a mere failure to diagnose chirosis of the liver may have been deficient, but was automatically amended when the issue of the defendant physician’s negligence in failing to perform a work-up was tried without objection. Under ORCP 23(b), a party may amend a pleading to conform to the evidence, thus raising an issue not raised by the pleading. A party may also amend to raise an issue "tried by express or implied consent to the parties." Where an issue not raised by the pleadings is tried without objection, the pleading is automatically amended.

Oregon follows the "we can’t tell rule" where (1) more than one allegation of negligence is submitted to the jury; (2) at least one allegation is not supported by the evidence; and (3) the court cannot determine which allegation the jury’s verdict was based upon. In other words, if the court cannot determine whether the verdict was based on an allegation supported by the evidence or on one unsupported by the evidence, the result is a new trial. A party can invoke this rule only if the party takes action to remove the unsupported allegation from the issues by making a motion to withdraw issues from the jury’s consideration. The Oregon Supreme Court observed that a motion for directed verdict against a party’s entire case is properly denied by the trial court if any allegations is supported by the evidence. A careful practitioner should consider using a special verdict or a general verdict accompanied with interrogatories in order to avoid the application of the "we can’t tell rule," because then the trial and appellate courts would be able to determine if the jury verdict was based on an allegation supported by the evidence.