"Loss of a chance should be compensable even if the chance is not better than even, and it should be recognized and valued as such rather than as an all-or-nothing proposition. Any other rule fails to satisfy the goals of tort law."
--Professor Joseph H. King, Jr. (1)
When I first met Monica, she was 16 years old and suffering from synovial sarcoma, a rare type of cancer. Doctors told Monica's parents she was eligible for treatment that statistically had a 30 to 40 percent chance of remission. However, Monica was not diagnosed promptly and the cancer had invaded her blood stream, which reduced her chance of remission to 1 percent. The family was distraught and sought help after Monica's treating pediatrician simply failed to follow up on her radiologist's request for a biopsy. Monica and her family want to hold the doctor legally responsible for robbing Monica of her chance to fight the disease and to survive, but can they?
In Florida, Monica has no course of redress. This case had to be rejected because even though Monica lost a 40 percent chance of remission, Florida's standard for causation makes that chance meaningless. Monica could not hold the doctor legally responsible because of the probability standard for causation set forth in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984).
In Gooding, the Florida Supreme Court held that "in negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury."(2) To have a viable cause of action against a health-care provider for medical negligence, a plaintiff must show that there is a greater-than-50-percent likelihood that the defendant's negligence caused the plaintiff's injuries. (3) This article addresses Florida's causation standard as set forth in Gooding, analyzes alternative causation approaches followed in other jurisdictions, and proposes that it is time for Florida to depart from Gooding's standard of causation and adopt an approach that would best serve human rights, public policy, and the judicial notion of justice.
Elements of Medical Malpractice in Florida
To prevail in a medical malpractice action in Florida, "a plaintiff must establish the following: the standard of care owed by a defendant, the defendant's breach of the standard of care, and that said breach proximately caused the damages claimed."(4) Unlike the majority of jurisdictions, Florida courts follow the "more likely than not" standard of causation. (5) In other words, the plaintiff carries the burden of proof "that the negligence probably caused the plaintiff's injury." (6) Thus, the plaintiff "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result." (7) The Florida Supreme Court's rigid approach to determining proximate causation in medical malpractice actions distinguishes Florida's standard of proof from the majority of other jurisdictions in this country. (8)
Gooding and the 51 Percent Chance Rule
Limited to medical malpractice actions and wrongful death actions that stem from medical malpractice, the Florida Supreme Court in Gooding held:
[A] plaintiff in a medical malpractice action must show more than a decreased chance of survival because of a defendant's conduct. The plaintiff must show that the injury more likely than not resulted from the defendant's negligence in order to establish a jury question on proximate cause. In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome. (9)
The "more likely than not" standard is satisfied when a plaintiff can prove there was a 51 percent or greater chance the injury or death would not have occurred but for the actions, or lack thereof, of the health-care provider. (10) Thus, if a plaintiff has less than a 51 percent chance of survival or treatability prior to a health-care provider's negligent act, the plaintiff does not have a cause of action against that provider in Florida. (11)
While other jurisdictions have moved away from this causation standard, there are still a minority of states that, like Florida, require proof that an injury was probably caused by a health-care provider's negligence. (12) "Probably" is defined as at least a 51 percent chance the injury was caused by such negligence, thus, showing the plaintiff would have been successfully treated for or survived the injury but for the negligent acts of the defendant. (13)
The court in Gooding justified the continued use of the more-likely-than-not standard by drawing attention to the fact that no other professional malpractice defendants may be held liable in cases in which the plaintiff is unable to prove the physician's negligence probably, rather than possibly, caused the injury. (14) In addition, the court held that relaxing the causation requirement could create an injustice in that "health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result." (15)
In Gooding, the Florida Supreme Court cited and agreed with the more-likely-than-not standard of causation as stated by the Ohio Supreme Court in Cooper v. Sisters of Charity of Cincinnati, Inc., 272 N.E.2d 97 (Oh. 1971). Yet in 2006, the Ohio Supreme Court overruled Cooper and recognized the loss-of-chance theory in Roberts v. Ohio Permanente Medical Group, Inc., 668 N.E.2d 480 (Oh. 2006). In doing so, the Ohio Supreme Court acknowledged that since its inception, the more-likely-than-not standard "has been criticized as an 'all-or-nothing' approach by commentators and courts alike." (16) As a result, the court stated that it could "no longer condone this view." (17) The court concluded that in overruling Cooper, they "join the majority of states that have adopted the loss-of-chance theory and recognize the importance of compensating plaintiffs in an amount consistent with the defendant's negligent acts or omissions." (18)
The Problem with Gooding: For Every Wrong Resulting in a Loss, There Should Be a Remedy
Gooding's more-likely-than-not standard of causation deprives plaintiffs of their fundamental right to free access to the courts and the chance of a legal remedy for their losses and injuries. (19) Moreover, any ambiguities in the judicial construction of a statute must be resolved in favor of free access to the courts. (20)
The goals of tort law and public policy are more adequately satisfied when plaintiffs are compensated in an amount consistent with the defendants' negligent acts or omissions. However, under the more-likely-than-not standard, more weight is placed on the plaintiff's chance of recovery, rather than on the defendant's negligence. Yet, there is value in an individual's chance of recovery, no matter how small this chance may be. Regardless, the Gooding rule denies recovery even in cases in which an individual's chance of recovery is significantly reduced.
Additionally, the 51 percent probability standard is arbitrary. It is a mathematical measure used to determine what cannot always be logically or readily addressed mathematically. Although there are general nationwide and worldwide statistics regarding most diseases and injuries delineating the chances of full...