Loss of chance in medical malpractice: a look at recent developments: the growing acceptance of this doctrine raises difficult public policy issues, as well as concerns for the limits of medical professional liability. .

• Author: Weigand, Tory A.

THE acceptance and application of the loss of chance doctrine in medical malpractice litigation continues to grow at an alarming rate. While once only a minority view, a majority of the jurisdictions that have addressed the issue now favor application of the doctrine. What are the recent decisions and developments, and what are possible defense strategies?

THE DOCTRINE

In its purest form, loss of chance is a doctrine permitting recovery of damages for the destruction or reduction of prospects for achieving a more favorable outcome. It most often arises in failure to diagnose cases, but it also has been recognized and applied in a variety of similar instances in which a patient who already is ill or stricken claims medical mistreatment that resulted in the loss of a chance of a better outcome. Absent timely diagnosis or other alleged failure, so the argument goes, the patient's chances for cure or a more favorable outcome would have been greater, with the result a palpable loss deserving of compensation.

The effect of the doctrine is that it alters the traditional "more likely than not" burden of proof. Under loss of chance, claimants are permitted to recover damages even though they have only a 50 percent or less chance of survival or a better outcome prior to the negligence. Absent the special treatment or recognition of "loss" that the loss of chance doctrine affords, plaintiffs otherwise would not be able to meet the traditional burden of proof as to causation (greater than 50 percent) as it is "more likely than not" that the underlying condition or disease caused the harm.

While the loss of chance doctrine can be traced to both early contract and tort cases, the most commonly cited modern source is a 1981 Yale Law Review article by Professor Joseph King Jr., "Causation, Valuation and Chance in Personal Injury Torts Involving Pre-Existing Conditions Future Consequences." (1) This article is a must-read for defense counsel as it has been widely cited and discussed in virtually every jurisdiction that has adopted the doctrine.

APPLICATION

In theory, loss of chance is applicable to any type of case in which the chances of a better outcome have been diminished, although it has received limited acceptance in non-medical malpractice actions. As to medical malpractice, the doctrine has been raised in a variety of contexts, including claims for failure to call emergency services in a timely fashion, (2) claims for failure to make timely admissions to hospitals (3) and failures to defibrillate heart attack patients. (4)

The loss of chance doctrine most frequently arises in claims alleging negligent failures to diagnose. In those instances, it is alleged that a negligent delay in the diagnosis of a serious underlying condition or disease, such as cancer, has resulted in the loss or reduction of the chances of a more favorable outcome, or even cure.

POLICY JUSTIFICATION

The primary justification for recognizing loss of chance, as stated by King, is the notion that life is precious and even the loss of a small chance of cure or better result is deserving of compensation. A similar justification is the argument that acts of negligence as to patients with poor prognoses should not go unredressed and that it is fundamentally unfair to deny or permit recovery based on whether the patient had a 50 percent or greater chance of a better outcome.

Proponents also assert that it is unfair to deny recovery where any uncertainty as to outcome was caused by the defendant, another argument made by King. Another common justification is that without loss of chance, healthcare providers may be less inclined to treat ill patients or to perform a full spectrum of testing in less than optimum cases.

SURVEY

1. Recognizing Loss of Chance

   A survey of the 50 American states reveals that 24, as well as Puerto Rico, have adopted a form of the loss of chance doctrine in medical malpractice actions and recognize loss of chance as a compensable interest.

   These states are:

   * Arizona: Thompson v. Sun City Community Hospital, 688 P.2d 605 (Ariz. 1984).

   * Colorado: Boyria v. Pash, 960 P.2d 123 (Colo. 1998); Sharp v. Kaiser Foundation Health Plan, 710 P.2d 1156 (Colo. App, 1985).

   * Connecticut: Borkowski v. Sachetti, 682 A.2d 1095 (Conn. App. 1986); Poulin v, Yasner, 781 A.2d 422 (Conn. App. 2001).

   * Georgia: Richmond County Hospital Authority v. Dickerson, 356 S.E.2d 548 (Ga. App. 1987); Dowling v. Lopez, 440 S.E.2d 205 (Ga. 1993).

   * Hawaii: McBride v. United States, 462 F.2d 72 (9th Cir. 1972).

   * Illinois: Holton v. Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997); Reardon v. Bonutti, 737 N.E.2d 309 (III.App. 2000).

   * Indiana: Cahoon v. Glessie, 734 N.E.2d 535 (Ind. 2000), vacating Cahoon v. Cummings, 715 N.E.2d 1 (Ind.App. 2000); Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995); Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000).

   * Iowa: Wendland v. Sparks, 574 N.W.2d 327 (Iowa 1998); Deburkarte v. Louran, 393 N.W.2d 131 (Iowa 1986); Sanders V. Ghristt, 421 N.W.2d 520 (Iowa 1988).

   * Kansas: Roberson v. Counselman, 686 P.2d 149 (Kan. 1984); Delaney v. Cade, 873 P.2d 175 (Kan. 1004); Pipe v. Hamilton, 56 P.3d 823 (Kan. 2002).

   * Louisiana: Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La. 1986); Smith v. State, 676 So.2d 543 (La. 1996).

   * Missouri: Soper v. Bopp, 990 S.W.2d 147 (Mo. App. 1999); Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. 1992); Holloway v. Cameron County, 18 S.W.3d 417 (Mo.App. 2000).

   * Montana: Aasheim v. Humberger, 695 P.2d 824 (Mont. 1985).

   * Nevada: Perez v. Las Vegas Medical Center, 805 P.2d 589 (Nev. 1991).

   * New Hampshire: Lord v. Lovett, 770 A.2d 1103 (N.H. 2001).

   * New Jersey: Scalfidi v. Seiler, 574 A.2d 398 (N.J. 1990).

   * New Mexico: Alberts v. Schultz, 975 P.2d 1279 N.M. 1999).

   * New York: Kallenberg v. Beth Israel Hospital, 357 N.Y.S.2d 508 (App. Div. 1st Dep't 1974; but see Mortenson v. Memorial Hospital, 483 N.Y.S.2d 264 (App. Div. 1st Dep't 1984); Birbeck v. Central Brooklyn Medical Group, 2001 N.Y. Slip Op. 401330 (N.Y. 2001).

   * Ohio: Roberts v. Ohio Permanente Medical Group, 668 N.E.2d 480 (Ohio 1996); McMullen v. Ohio State University Hospitals, 725 N.E.2d 1117, 1121 (Ohio 2002); but see Liotta v. Rainey, 2000 Ohio App. Lexis 5475 (Ohio App. 2000).

   * Oklahoma: McKellips v. Saint Francis Hospital, 741 P.2d 457 (Okla. 1987).

   * Pennsylvania: Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978).

   * Puerto Rico: Morales v. United States, 642 F.Supp. 269 (D. P.R. 1986).

   * Vermont: Short v. United States, 908 F.Supp.2d 227 (D. Vy. 1998); Lockwood v. Lord, 657 A.2d 555 (Vt. 1994);

   * Washington: Herkovits v. Group Health Co-operative of Puget Sound, 664 P.2d 474 (Wash. 1981);

   * West Virginia: Thornton v. CAMC, 305 S.E.2d 316 (W.Va. 1983); and

   * Wisconsin: Ehlinger v. Sipes, 454 N.W.2d 754 (Wis. 1990); Fischer v. Ganju, 485 N.W.2d 10 (1992).

2. Rationales for Lost Chance

   The loss of chance jurisdictions have adopted one of four approaches: (1) increased risk of harm, (2) substantial possibility, (3) a combination or slight variant of the increased risk/substantial possibility approaches, and (4) pure chance or separate injury.

   1. Increased Risk of Harm

      Under the increased risk of harm approach, "a prima facie case of liability is established where expert medical testimony is presented to the effect that the physician's conduct did, with a reasonable degree of medical certainty, increase the risk that the harm sustained by plaintiff would occur? The degree of certitude normally required as to causation is "relaxed" as any decrease in the chance of survival or better outcome can constitute an increased risk of harm even if the plaintiff's chances of survival or better outcome were less than 50 percent before the negligence.

   2. Substantial Possibility

      A similar approach adopted by other states allows recovery where the negligence is found to have resulted in a "substantial" loss of a patient's chances of survival. Once evidence of a loss of a substantial possibility of survival or better outcome is presented, it is up to the jury to determine causation. The Washington Supreme Court was an early proponent of this approach. In Herkovits, (6) a physician was alleged to have failed to diagnose lung cancer. It was claimed that there had been a six- month delay in diagnosis, which caused the decedent to lose a 14 percent chance of surviving five years. The court held that the loss of a 14 percent chance was "substantial" and therefore compensable.

   3. Combination

      Some states have adopted variant standards incorporating a combination of the increased risk of harm and the substantial possibility approaches or utilizing slightly different terminology. For instance, under Fischer, (7) Wisconsin requires a showing that (1) the omitted treatment was intended to prevent the very harm that resulted; (2) the plaintiff would have submitted to the omitted treatment; and (3) it is more probable than not that the treatment would have lessened or avoided the injury. It is then for the trier of fact to determine whether the alleged negligence was a substantial factor in causing the plaintiff's harm.

      Illinois's loss of chance rule requires that "the defendant's failure to render a timely diagnosis more probable than not compromised the effectiveness of treatment received or increased the risk of harm to the plaintiff." (8)

   4. Pure Chance

      The pure chance or separate injury approach claims not to relax the causation requirement but instead focuses in on the alleged injury. Under this approach, a plaintiff is required to show, to a reasonable degree of medical certainty or probability, that the physician's failure to diagnose the underlying illness reduced a chance of survival. However, the compensable loss is the loss of chance, not the ultimate outcome. As with the other approaches, courts have not quantified what specific percentages constitute a "substantial" or meaningful loss of opportunity. Indeed, some states, like Louisiana, hold...