Medical Malpractice

• Publication year: 2021

76 Nebraska L. Rev. 979. Medical Malpractice

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A Closer Look at Loss of Chance Under Nebraska Medical Malpractice Law: Steineke v. Share Health Plan, Inc., 246 Neb. 374, 518 N.W.2d 904 (1994)

Note*

TABLE OF CONTENTS

I. Introduction 979
II. Legal Development of Loss of Chance Doctrine 981
A. Traditional Tort Law Principles: All-Or-Nothing
Approach 981
B. Evolution of Loss of Chance 982
1. King Approach 983
2. Loss of Substantial Chance of Survival Approach 984
3. Restatement Approach 985
III. Nebraska Common Law 986
A. Recognizing Loss of Chance in Nebraska 987
B. Future of Loss of Chance in Nebraska 988
IV. Policy Arguments 990
A. Damage Award Valuation 990
B. Policy Considerations 991
V. Conclusion 994

I. INTRODUCTION

Consider you are an attorney practicing medical malpractice law in Nebraska and a potential client confronts you with the following scenario. Herbie Husker, the strong-armed quarterback for the University of Nebraska football team, visited his doctor about pain in his left arm. The doctor examined him, took x-rays, and diagnosed a torn

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tricep, which was attributed to throwing the football too often. The doctor prescribed pain medication and advised Herbie to reduce his practice schedule. Six months later, after successfully leading Ne-braska to its fifth national championship, Herbie was still suffering from pain in his left arm, which now had spread to his elbow. On the advice of his coach, he returned to see his doctor. This time, she diagnosed cancer.

Herbie's initial chance of survival with timely diagnosis of the cancer would have been 50%. Because of the delay in diagnosing the cancer, however, several experts agreed that the delay resulted in a diminished 40% chance of survival. Furthermore, the experts testified that they would have conducted additional tests during Herbie's initial visit, which is customary in the local medical community.

Herbie Husker now needs your advice. Although the standard of care was breached and the doctor's failure to timely diagnose the cancer was a direct cause of the loss of chance of survival, the question remains whether or not Herbie Husker can recover damages for his loss of chance of survival under Nebraska medical malpractice law.

The foregoing hypothetical represents a typical loss of chance tort cause of action in which a patient's initial chance of avoiding harm was "not better than even," and the patient suffered a reduction in that initial chance due to negligent medical care. At first glance, it appears that Nebraska does not recognize the loss of chance cause of action according to Steineke v. Share Health Plan, Inc.(fn1) Yet, upon further analysis, Steineke may support the adoption of loss of chance either as a cause of action or as an element of damages. Outside of Nebraska, a decreasing majority of jurisdictions still deny recovery to patients when their initial chance of avoiding harm was lower than 51%.(fn2) Courts justify this position because the patient is unable to demonstrate with reasonable medical certainty(fn3) that but for the neg

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ligence, the harm could have been avoided. The recent trend, however, has been to allow patients recovery for any loss of chance, regardless of their initial chance.(fn4)

This Note first chronicles the development of loss of chance in medical malpractice litigation by focusing on the various approaches used by jurisdictions that recognize the cause of action. Second, this Note analyzes the Nebraska Supreme Court's position on whether or not to recognize loss of chance either as a cause of action or as an element of damages. Finally, this Note examines the valuation of damages and analyzes the policy considerations for adopting loss of chance in a medical malpractice legal regime.

II. LEGAL DEVELOPMENT OF LOSS OF CHANCE DOCTRINE

Steineke v. Share Health Plan, Inc. emits strong support for adopting loss of chance either as a cause of action or as an element of tort damages. Yet, because the Nebraska Supreme Court has not adopted loss of chance explicitly, understanding how loss of chance developed is necessary to analyze its current status and its future impact on Ne-braska medical malpractice cases. Therefore, this section will lay out the traditional tort law principles and discuss how loss of chance fits within that framework, followed by a cursory overview of the various approaches used to allow recovery for loss of chance.

A. Traditional Tort Law Principles: All-Or-Nothing Approach

The typical medical malpractice case is a tort action in negligence.(fn5)Under common law negligence principles, a plaintiff must prove four elements: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the defendant's breach was both the legal cause-in-fact and the proximate cause of the plaintiff's injury; and (4) the plaintiff suffered some injury.(fn6) In loss of chance cases, the element of causation is the most difficult to prove. The traditional tort model requires the plaintiff to prove causation by a preponderance of

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the evidence.(fn7) Under this standard, a plaintiff must prove that it is more likely than not that the defendant's negligence caused the patient's injury.(fn8)

The all-or-nothing approach to loss of chance falls within the traditional concepts of tort law.(fn9)Jones v. Owings(fn10) is representative of cases upholding the traditional tort model in causes of action involving loss of chance. In Jones, prior to the patient's treatment for a fractured left femur, the doctor administered a preoperative chest x-ray.(fn11) The radiology report from that x-ray noted abnormality in the upper left lung, and follow-up procedures were recommended.(fn12) Almost one year later, the radiologist took another preoperative x-ray. This time the radiology report specifically noted "probable scaring [of the] left upper lobe" and again recommended follow-up procedures.(fn13) Despite the recommendation, the patient's doctor took no action. Thereafter the patient was diagnosed with lung cancer and later died as a result.(fn14)

A wrongful death action was instituted by the patient's estate, alleging negligence by the doctor in failing to follow up on the radiologists' reports or informing the patient of the report recommendations.(fn15) At trial, expert testimony established that even with timely diagnosis after the initial x-ray, the patient's chance of survival was only approximately 50%.(fn16) By the time the cancer was discovered by the doctor, the patient's chance of survival was 20% to 25%.(fn17)

The Supreme Court of South Carolina denied the plaintiff's recovery, choosing instead to maintain the traditional approach. The court reasoned that "to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant's negligence, in probability, proximately caused the death."(fn18) The court determined that to allow recovery without establishing but for causation would be "contrary to the most basic standards of proof which under

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gird the tort system."(fn19) In other words, even though there is approximately a 50% chance that the doctor caused the patient's ultimate injury, if the plaintiff cannot demonstrate by a preponderance of the evidence that there was at least a 51% chance that the doctor caused the his harm, the negligent doctor triumphs.(fn20) But if the plaintiff can establish the requisite 51% chance that the doctor's actions caused the patient's harm, the patient prevails even though there is a 49% chance that the doctor did not cause the patient's ultimate injury.(fn21)

In the typical loss of chance case, as in Jones, the patient has less than a 50% chance of survival prior to treatment. So even with proper medical treatment, the patient would die. Therefore, the doctor's negligence is not the cause-in-fact (i.e., but for) of the patient's death. Accordingly, the plaintiff can never prove by a preponderance of the evidence that the defendant's negligence is a cause-in-fact of the injury, and, as in Jones, is denied recovery for his injury. This has led courts to create ways to circumvent the traditional tort rules to prevent the perceived injustice of the but for test.(fn22)

B. Evolution of Loss of Chance

The all-or-nothing approach is the traditional rule that denies recovery for a patient who had a less than 51% chance of survival prior to the alleged negligence.(fn23) This rule operates regardless of the diminution in chance caused by the doctor's negligence. This approach represents the diminishing majority view(fn24) mainly because of its simplicity and "rough justice."(fn25)More recently, many jurisdictions have turned to the King approach, which compensates the plaintiff for the percentage of harm actually caused by the negligent doctor.(fn26) In addition, two other approaches have evolved that allow recovery for loss of chance based on a relaxed causation standard. Under one approach, if the plaintiff demonstrates that the defendant's negligence deprived the patient of a

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substantial chance of survival,(fn27) then the plaintiff recovers 100% of the damages. This currently is the minority view(fn28) because, as one commentator put it, "[i]t is difficult to determine whether this approach is really a restatement of the all-or-nothing approach or if the courts are willing to compensate any loss."(fn29) The second approach, the Restatement (Second) of Torts section 323(a), has been used by a few jurisdictions, which allows the plaintiff to recover for any increased risk of harm caused by the defendant's negligence.(fn30)

1.King Approach

The fairest and most equitable of all loss of chance theories is the King approach. This approach compensates for the loss of chance regardless of whether the plaintiff had a 99% chance of survival...