Section 14 Causation in Loss of a Chance vs. Wrongful Death

• Library: Damages 2012

Before the Wollen v. DePaul Health Center,828 S.W.2d 681 (Mo. banc 1992), decision, to show a causal connection between the defendant’s actions and the injury, the plaintiff was required to “show that the injury would not have been sustained but for the negligence” of the defendant(s). Delisi v. St. Luke’s Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 175 (Mo. App. E.D. 1985). To establish a jury question on causation, the plaintiff was required to prove that it was “more probable than not” the injury was caused by the defendant’s negligence. Motley v. Colley, 769 S.W.2d 477, 479 (Mo. App. W.D. 1989). In introducing evidence of causation, the plaintiff must be able
to demonstrate with reasonable medical or scientific certainty that the defendant’s negligence caused the harm. Schiles v. Schaefer, 710 S.W.2d 254, 261 (Mo. App. E.D. 1986).

In Wollen, 828 S.W.2d at 685, the Court articulated that the ultimate issue with regard to causation “is whether there is a permissible inference from the allegation of a statistical chance of recovery to the conclusion that death was caused by the negligence of the defendant(s).” To decide such an issue, there needs to be a clear understanding of the distinction between “logical inferences” and those inferences that involve a “leap of faith”—making them mere speculation. Id.

In the posture of a case such as Wollen, the Court assumes that the plaintiff can prove “there was a statistical chance of survival.” Id.

Regardless of the exact percent of individuals in the circumstances of the decedent, as long as there is a significant chance of either survival or death, the statistic cannot tell whether the decedent would have [actually] survived if properly diagnosed. A statistic of this kind typically predicts that, out of a random sample of a large number [of diagnosed and treated patients]—if properly diagnosed and treated—Y percent will live and Z percent will die.

Id. at 685–66.

As a result, a jury is allowed to “speculate as to which group a decedent would fall, but the statistical evidence—without more—does not give a jury a basis to believe that the decedent belongs to either the group that lives, or the group that dies.” Wollen,828 S.W.2d at 686. This being true, the statistical percentage—whether greater or less than 50%—makes it “impossible to prove that decedent’s death resulted from the failure to properly diagnose and treat.” Id. Therefore, an action such as this must be brought under the survivorship statute. I...