On November 25, 2014, the Louisiana Court of Appeal Fifth Circuit (“Appellate Court”) issued its opinion in a Louisiana medical malpractice case that reversed a defense verdict, finding that the plaintiff had proved by a preponderance of the evidence that he had a chance of a better medical outcome at the time of the medical negligence, and that the defendant physician’s negligence deprived him of that chance.
Loss Of A Chance Of A Better Medical Outcome Claim
Louisiana recognizes a cause of action in medical malpractice cases for a loss of a chance of a better medical outcome in which the issues are whether the plaintiff lost any chance of a better outcome because of the defendant’s negligence, and the value of that loss. The degree of the loss of chance may be pertinent to the issue of whether the defendant’s negligence caused or contributed to the loss, but the loss in any degree is compensable. The fact-finder must focus on the chance lost on account of the medical negligence as a distinct compensable injury and to value the lost chance as a lump sum award based on all of the evidence.
The Appellate Court stated that in a medical malpractice case seeking damages for the loss of a chance of a better medical outcome because of a physician’s breach of the standard of care, the plaintiff must prove by a preponderance of the evidence that he had a chance of a better medical outcome at the time of the professional negligence and that the tortfeasor’s action or inaction deprived him of all or part of that chance.
The Underlying Facts
The 53-year-old plaintiff went to a local hospital emergency room on February 11, 2007, complaining of chest pain after he ate an apple fritter earlier that day and believed that it was stuck in his esophagus. An endoscopy located remnants of the fritter, but showed that there was no longer any obstruction. The plaintiff was administered a “GI cocktail” that temporarily relieved some of his symptoms but his pain did not fully resolve. An electrocardiogram was performed and a cardiac enzyme workup showed elevation in two of the four cardiac enzymes.
Due to the cardiac enzyme results and the plaintiff’s continued complaints of chest pain, the plaintiff was admitted to the hospital’s telemetry floor around 8:50 p.m. that evening for cardiac monitoring in order to rule out a heart attack. The plaintiff continued to complain of chest pain throughout that evening and night. Repeat cardiac enzyme labs were ordered as well as an echocardiogram and cardiology consultation to be performed in the morning.
The second cardiac enzyme labs were drawn at 1:36 a.m. and the results that were available at around 2:50 a.m. showed that all four cardiac enzymes were elevated beyond normal limits. A nurse contacted the defendant physician regarding the results but the defendant testified during trial that he was informed only about the elevation of one of the cardiac enzymes and that he was told that the plaintiff’s condition was stable with no changes in the telemetric monitoring or vital signs and no worsening of chest pain. The physician issued no new orders at that time.
Although the plaintiff’s chest pain resolved by daybreak, a cardiologist evaluated the plaintiff around 8:30 a.m. and an angiogram was performed that afternoon that showed an occlusion at the ostium of the first diagonal branch artery. The cardiologist did not perform angioplasty at that time because he felt that the plaintiff’s heart muscle had already sustained permanent damage by the time of the angiogram.
The plaintiff filed his Louisiana medical malpractice case in which he alleged that the defendant physician breached the standard of care by failing to arrange an immediate emergency cardiac consultation upon receiving the cardiac enzyme lab results at 2:50 a.m., which deprived the plaintiff of a chance to have a better medical outcome. The plaintiff’s medical malpractice case was tried before a judge (not a jury).
The trial judge found that the defendant physician breached the standard of care by failing to order an immediate cardiology consultation after being informed of the increase in cardiac enzymes at 2:50 a.m. but that the defendant physician’s breach of the standard of care was not a proximate cause of the damages alleged to have been sustained by the plaintiff, stating that “the claim for a lost chance of saving [the plaintiff’s] heart muscle is highly speculative, and not supported by the testimony presented at trial” and that the defendant physician’s “deviation below the standard of care did not cause [the plaintiff] to suffer any damages that he would not have otherwise suffered.” The plaintiff appealed.
The Appellate Court noted that the defendant had not appealed the trial judge’s finding that he had been negligent and therefore it only had to decide whether the trial court erred in finding that plaintiff failed to prove a causal connection between the defendant physician’s negligence and the plaintiff’s resulting damages, and whether such negligence deprived the plaintiff of a chance of a better medical outcome.
The Appellate Court stated that the trial court failed to understand that the focus is whether the defendant’s action or inaction deprived plaintiff of a chance to have a better medical outcome, not whether a better outcome would have, in fact, occurred. The medical testimony was clear that time is of the essence in treating a blockage in a coronary artery – the sooner the patient is evaluated, the sooner active treatment can be started, and the better the chance to intervene in time to open the blocked artery and reverse or minimize the heart muscle death. The testifying medical experts were all in agreement that the elevated enzymes at 2:50 a.m. were the earliest laboratory confirmation that plaintiff had, in fact, experienced a heart attack, or was, in fact, experiencing a heart attack (the experts’ trial testimony differs only in that they did not agree whether these lab results indicated if the heart attack was still in progress at that time, when intervention was possible, and when the artery could no longer be stented). Therefore, the Appellate Court held that the trial court’s conclusion that plaintiff failed to bear his burden of proof in this case was manifestly erroneous.
The Appellate Court held that because it was clearly shown that time is of the essence in treating cardiac arterial blockages, the plaintiff proved by a preponderance of the evidence that the defendant physician’s failure to call for a cardiac consultation at 2:50 a.m. deprived the plaintiff of the opportunity to have a specialist (a cardiologist) with specific expertise evaluate his case at 2:50 a.m., or very soon thereafter, and exercise his expert judgment regarding whether angioplasty (or other intervention) was an option at that time.
The Appellate Court held that the record supported a finding that plaintiff had a less-than-even chance of a better recovery had the defendant physician called for a cardiac consultation at 2:50 a.m. and that the evidence taken as a whole (the medical evidence, expert testimony, plus plaintiff’s own self-serving testimony) supported an award of $12,000.00 to compensate him for his less-than-even chance of a better medical outcome.
Source Harold Pesses versus Nicholas J. Angelica, M.D., et al., No. 14-CA-336.
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