UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 9, No. 1FALL 1985
Herskovits v. Group Health Cooperative: Negligent Creation of a Substantial Risk of Injury is a Compensable Harm
Warner Miller
I. Introduction
In Herskovits v. Group Health Cooperative of Puget Sound,(fn1) the Supreme Court of Washington announced its willingness to permit recovery in tort for "loss-of-a-chance"(fn2) claims. For the purposes of this Note, a loss-of-a-chance claim is an action for the negligent deprivation of a less-than-probable chance to survive a preexisting, life-threatening condition.(fn3) The issue before the Herskovits court was whether a defendant hospital may be liable for wrongful death if, as a result of the hospital's negligent diagnosis, its patient suffered a delay in treatment for cancer that reduced his chance of survival from thirty-nine percent to twenty-five percent.(fn4) The doctrinal question thus presented was whether the negligent destruction of a mere possibility of survival should support wrongful death recovery absent proof that the defendant's conduct was a cause in fact of the victim's death.(fn5) The majority concluded that evidence sufficient to support a finding that the defendant negligently increased a risk of injury or death will suffice to create a jury question on the issue of causation in a wrongful death action.(fn6) Thus, the Herskovits court acknowledged an action for the negligent destruction of a less-than-probable chance of survival.
Recognition of the loss-of-a-chance claim is a dramatic development in the evolution of Washington tort law. Before Herskovits, the negligent deprivation of a chance of survival was not regarded as a compensable injury in Washington courts unless the chance destroyed was at least a reasonable probability of survival.(fn7) The wrongful destruction of a reasonable probability of survival will support an action for wrongful death: but for the defendant's conduct, the victim probably would have survived. Following Herskovits, the negligent destruction of a less-than-probable chance of survival may(fn8) permit recovery even when the odds suggest that the chance destroyed would have been unavailing.(fn9) Thus, the umbrella of Washington's tort law has been expanded to protect a hitherto unrecognized field of personal interests in survival.
This Note commends the Herskovits court for recognizing the loss of-a-chance claim as a legitimate cause of action. Chance interests are worthy of the protection of tort law. We can be statistically certain that the the destruction of chance interests in survival results in actual losses.(fn10) The burden of such losses should not fall exclusively on the victim, particularly when the interfering conduct of the wrongdoer has deprived the individual victim of the ability to know and prove with certainty the value of the lost chance.(fn11) The burden of the loss can be shifted in an equitable manner to the negligent actor.(fn12) Moreover, the risk of tort liability will provide a useful spur to the medical community to exercise due care in the diagnosis and treatment of typically fatal diseases and conditions.(fn13) Finally, the recognition of the value of a chance interest in survival is the rational culmination of a deepening commitment within the law of torts to compensating those whose exposure to grave risks of harm has been negligently increased.(fn14) The Herskovits decision, while dramatic, builds upon a well-documented tradition of solicitude toward loss-of-a-chance victims.
The Herskovits court was deeply divided, however, as to both whether and under what restrictions loss-of-a-chance recovery should be permitted.(fn15) The theory of recovery adopted by the court's lead opinion contrasts so starkly with that of the specially concurring plurality that the majority's decision to remand the case for trial lacks a controlling rationale.(fn16) The two opinions proposed conflicting methods of calculating damages in loss-of-a-chance actions.(fn17) Hence, the value of Herskovits as precedent lies only in its pronouncement that Washington courts are willing to recognize the loss-of-chance claim as one upon which relief may be granted.(fn18)
This Note recommends that Washington courts adopt the approach to loss-of-a-chance recovery proposed by the Herskovits plurality. The plurality's approach provides for a recovery commensurate with the magnitude of the chance interest destroyed, thereby ensuring fairness to both the plaintiff and the defendant.(fn19) The proposal permits recovery without resort to corruption of well-settled tort causation doctrine, thus providing the most efficient accommodation of the competing policy concerns.(fn20) The Note identifies the presumption of proportionate causation underlying the plurality's approach to loss-of-a-chance actions.(fn21) The Note also explores appropriate limitations on loss-of-a-chance recovery and the implications of Washington's adoption of the doctrine.(fn22)
The lead opinion, by contrast, is internally inconsistent and unworkable as an approach to the loss-of-a-chance problem. This Note will discuss the weaknesses of the lead opinion's analysis(fn23) and the insubstantiality of the dissenters' concerns.(fn24)
II. The Factual Setting of the Herskovits Claim
Leslie Herskovits, a member of Group Health Cooperative of Puget Sound (Group Health) since 1955, visited the hospital in June and July of 1974, complaining of chest pain.(fn25) In December of 1974, Mr. Herskovits returned to the hospital, seeking relief from a cough that had plagued him for the previous six weeks.(fn26) Group Health doctors failed to detect any indication of lung cancer from the tests they administered during the patient's visits in 1974.(fn27)
In May of 1975, Mr. Herskovits, again suffering from chest pain and coughing, consulted a private physician, Dr. Jonathon Ostrow, whose evaluation led to a diagnosis of lung cancer.(fn28) Group Health surgeons removed Mr. Herskovits' left lung in July of 1975.(fn29) Twenty months later, at the age of sixty, Mr. Herskovits died of cancer.(fn30)
Acting as the personal representative of Mr. Herskovits' estate, the decedent's widow brought a wrongful death action, alleging that Group Health had been negligent in failing to diagnose her husband's lung cancer.(fn31) The complaint alleged that if the defendant had exercised due care in its investigation of Mr. Herskovits' symptoms, the hospital probably would have discovered his condition by December of 1974.(fn32) The plaintiffs expert testified that "if the tumor was a 'stage 1' tumor in December 1974, Herskovits' chance of a 5-year survival would have been 39 percent. In June 1975, his chances of survival were 25 percent assuming the tumor had progressed to 'stage 2.' Thus, the delay in diagnosis may have reduced the chance of a 5 year survival by 14 percent."(fn33) The complaint thus alleged that the defendant's failure to diagnose the decedent's lung cancer "led to and caused his death."(fn34)
Group Health moved for summary judgment on the claim, arguing that the plaintiff had failed to offer evidence sufficient to support a finding that the hospital's conduct was a cause in fact of Mr. Herskovits' death.(fn35) The trial court granted the defendant's motion, finding that "[t]he plaintiff failed to produce expert testimony which would establish that the decedent probably would not have died on or about March, 1977, but for the conduct of the defendant"(fn36) The plaintiff appealed the decision directly to the Washington Supreme Court.(fn37)
III. The Court's Responses to the Herskovits Dilemma
Under existing Washington law, the trial court properly granted Group Health's motion for summary judgment on the Herskovits wrongful death claim.(fn38) Arguably, the defendant breached a duty of care in its treatment of the patient's complaints.(fn39) Nevertheless, the defendant was entitled to judgment as a matter of law because no reasonable jury could conclude, on the basis of the plaintiffs proofs, that the defendant's negligence probably caused Mr. Herskovits' death.(fn40) Only by resort to "speculation and conjecture" could a jury find that Mr. Herskovits more likely than not would have survived but for the negligent reduction of his already marginal expectation of survival. According to the plaintiffs own statistics, the decedent's cancer probably would have taken the course it took regardless of the six-month delay in diagnosis and treatment.(fn41)
On the other hand, each of the Herskovits opinions acknowledged the "apparent harshness" of denying compensation to one who suffers, by reason of another's wrongdoing, the loss of a chance to survive.(fn42) The fact that the justices were unanimous in their sympathy for the loss-of-a-chance victim suggests that respect for the value of a chance interest in survival rests upon more than mere sentimentality.(fn43)
Faced with the conflict between well-settled tort causation doctrine (and the policy interests protected thereby)(fn44) and the justices' reluctance to permit the wrongfully destroyed chance interest to go unredressed, the Herskovits court split three ways.
The dissenting justices urged the court to affirm the trial court's adherence to the "but for" formulation of the cause in fact(fn45) requirement. The dissenters stressed the importance of the policy concerns protected by the...
