In a case decided last October by the Supreme Court of Washington (“the Court”), the issue before the Court was whether the “lost chance doctrine” applies in medical malpractice cases where the injuries resulted in disability rather than death (in a 1983 case, the Court held that the lost chance doctrine applied in a case involving death where the plaintiff died following the alleged failure of his doctor to timely diagnose his lung cancer).
What Is The Lost Chance Doctrine?
The Lost Chance Doctrine involves a claim that negligence caused a loss of the chance of a better outcome. In the 1983 case decided by the Court, it was alleged that the defendant negligently failed to diagnose lung cancer in a patient who had complained of a persistent cough and chest pain over the course of a year for which he was prescribed only cough medicine. A later second medical opinion led to the diagnosis of the patient’s lung cancer. The delay in diagnosis likely diminished the patient’s chance of long-term survival from 39% to 25%. The patient died at the age of 60 less than two years after his diagnosis. Under those facts, the Court recognized a cause of action for the loss of a chance, explaining, “To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence … [n]o matter how small that chance may have been—and its magnitude cannot be ascertained—no one can say that the chance of prolonging one’s life or decreasing suffering is valueless.”
The Facts Underlying The Recent Case
On August 31, 2004, a woman suffered a hypoglycemic event that caused her to run her car into a utility pole at approximately 45 m.p.h. She was taken by ambulance to the emergency room with visible lacerations on her face from the car accident. She was given a neurological assessment upon arrival and a brain CT scan one hour later, both of which were normal.
Nonetheless, the woman was observed to have neurological symptoms, including being wobbly on her feet and having severe pain even after pain medication. The doctor did not perform another neurological exam before the woman was discharged from the emergency room, without head injury discharge instructions. The woman was unable to walk herself to or from the car and had to be carried to bed by her husband when they arrived home.
The next day, the woman was transported by ambulance back to the same emergency room where she was diagnosed as having an “evolving infarct . . . in the right middle cerebral artery territory” (a stroke). An MRI confirmed that the woman was having a stroke but no anticoagulant or antithrombotic treatment or therapy was provided. A CT angiogram was not done until later, which showed a dissected carotid artery. Nonetheless, no anticoagulant therapy, antiplatelet agents, or any other treatment was ordered at that time. The woman suffered permanent brain damage (a quarter to a third of her brain tissue was destroyed).
The woman’s medical malpractice lawsuit alleged the doctors’ negligence substantially diminished her chance of recovery and that, with nonnegligent care, her disability could have been lessened or altogether avoided. It was alleged that the woman would have had a 50% to 60% chance of a better outcome if proper and timely medical care had been provided that would have resulted in no disability or, at least, significantly less disability.
The Court noted that “The rationales underpinning the lost chance doctrine have generally been applied the same in wrongful death claims and medical malpractice claims where the ultimate harm is something short of death.” The Court held, “We hold that [the 1983 case] applies to lost chance claims where the ultimate harm is some serious injury short of death. We also formally adopt the reasoning of the [the 1983 case] plurality. Under this formulation, a plaintiff bears the burden to prove duty, breach, and that such breach of duty proximately caused a loss of chance of a better outcome.”
The Court concluded, “We hold that there is a cause of action in the medical malpractice context for the loss of a chance of a better outcome. A plaintiff making such a claim must prove duty, breach, and that there was an injury in the form of a loss of a chance caused by the breach of duty. To prove causation, a plaintiff would then rely on established tort causation doctrines permitted by law and the specific evidence of the case.”
However, the damages recoverable would be limited to the percentage of the harm attributable to the negligence of the medical provider(s) (for example, if the damages suffered by the injured person were determined to be $500,000, and the chance that the person would have avoided such damages with proper care is 25%, the recoverable damages for loss chance of a better outcome would be $125,000 against the negligent medical provider(s)).
The Court noted that 20 U.S. states plus the District of Columbia (D.C.) have adopted some form of the loss chance doctrine (10 states that have considered its adoption have declined to do so).
Source Mohr v. Grantham, 262 P.3d 490 (2011).
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