So You're Telling Me There's a Chance: an Examination of the Loss of Chance Doctrine Under Nebraska Law

• Publication year: 2021

99 Nebraska L. Rev. 1014. So You're Telling Me There's a Chance: An Examination of the Loss of Chance Doctrine Under Nebraska Law

So You're Telling Me There's a Chance: An Examination of the Loss of Chance Doctrine Under Nebraska Law

Comment ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 1014

II. The Loss of Chance Doctrine and Its Different Permutations ......................................... 1016
A. Origins of the Loss of Chance Doctrine ............. 1017
B. The All or Nothing Approach ...................... 1020
C. The Relaxed Standard of Proof Approach .......... 1022
D. The Distinct Compensable Injury Approach ........ 1026

III. Loss of Chance Under Nebraska Law .................. 1031

IV. Nebraska Should Adopt the Distinct Compensable Injury Approach to the Loss of Chance Doctrine ....... 1034
A. Why the Nebraska Supreme Court Is Misguided in Refusing to Adopt the Loss of Chance Doctrine ..... 1034
B. Policy Reasons Supporting Nebraska's Adoption of the Loss of Chance Doctrine ....................... 1036

V. Conclusion ............................................ 1038

I. INTRODUCTION

Imagine a lawyer sitting in her office in Lincoln, Nebraska, when a client walks in-her name is Mary. Mary tells the lawyer the following story about her husband, Lloyd. Lloyd was experiencing horrific pain in his throat and chest one day while driving a client to the airport in his limousine. Due to the pain, he decided he needed to see a

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doctor. He went to see Dr. Harry Dunne, who told him that he should not be worried and diagnosed him with gastroesophageal reflux disease, more commonly known as acid reflux. Dr. Dunne told Lloyd to stay away from spicy and fatty foods and to take some over-the-counter antacid medicine. At first, these suggestions helped, and Lloyd continued with life as normal. Approximately a year later, Lloyd started coughing up blood and having severe pain in his throat and chest. Extremely concerned, he returned to Dr. Dunne who immediately sent Lloyd to get x-rays and a throat biopsy. The test determined that Lloyd had hypopharyngeal cancer, a type of throat cancer. Shortly after that, Lloyd died as a result of the cancer.

The lawyer decided to take the case. Through expert witnesses, the lawyer determined that if Dr. Dunne had correctly diagnosed the cancer on the first try, Lloyd would have had a 49% chance of survival. However, after the delayed treatment, Lloyd only had a 10% chance of survival. The experts also helped the lawyer determine that Dr. Dunne breached the standard of care and that he was the direct and proximate cause of the lost chance of survival. Knowing all of this, what should the lawyer do? Can Mary recover any damages for Lloyd's wrongful death?

This hypothetical is an example of a traditional "loss of chance" case where the patient's original chance of survival was less than 50%. The loss of chance doctrine is a tort theory that allows plaintiffs to recover damages for their lost chance of survival or chance of a better outcome. ^[1] The problem for Mary is that she lives in Nebraska, one of the few states that does not recognize recovery under the loss of chance doctrine.

This Comment examines the loss of chance doctrine and its different permutations. It argues that Nebraska should adopt the "distinct compensable injury" approach to the loss of chance doctrine to allow patients to recover damages when their original chance of survival or better outcome is less than 50%. Nebraska should adopt this form of the loss of chance doctrine because it is consistent with traditional tort law principles and it provides vulnerable patients with a form of recovery that can help protect them from the negligence of their health-care professionals. Most importantly, the reasons the Nebraska Supreme Court previously listed in opposition to the loss of chance doctrine are not persuasive.

Part II of this Comment will survey the history and the three distinct approaches to the loss of chance doctrine: the "all or nothing" approach, the "relaxed standard of proof" approach, and the "distinct compensable injury" approach. Part III will examine the status of the

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loss of chance doctrine in Nebraska. Part IV will analyze why the Nebraska Supreme Court is misguided in refusing to adopt the loss of chance doctrine and will also discuss the policy reasons supporting Nebraska's adoption of the loss of chance doctrine.

II. THE LOSS OF CHANCE DOCTRINE AND ITS DIFFERENT PERMUTATIONS

The loss of chance doctrine is a legal theory that has been accepted and applied in a majority of states. ^[2] However, not all courts are willing to accept the so-called "radical" doctrine. The doctrine "has been described as 'the most pernicious example of a new tort action result-

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ing in expanded liability.'" ^[3] The loss of chance doctrine is a cause of action that is almost unique to medical malpractice litigation; it allows "a patient-turned-plaintiff to recover damages from a doctor-turned-defendant without even needing to establish that the doctor was . . . [the proximate cause of] the patient's alleged injury." ^[4] The law surrounding the loss of chance doctrine can be difficult to navigate due to the drastically different approaches taken by courts around the country. ^[5]

The loss of chance doctrine in medical malpractice cases traditionally applies when a doctor decreased an injured or ill patient's chance of (1) surviving or (2) recovering. ^[6] With regard to the first situation, the patient succumbs to the illness, and "the loss suffered is the lost chance of surviving the preexisting injury or illness or at least a chance of a substantial increase in the length of such survival." ^[7] The majority of cases that involve the loss of chance doctrine fall into this category. ^[8] The second category includes cases that involve patients who do survive but do not recover as fully as they should have because of medical malpractice. ^[9]

A. Origins of the Loss of Chance Doctrine

Surprisingly, the earliest known example of the loss of chance doctrine is not a medical malpractice case; instead, it is an English contracts case, Chaplin v. Hicks. ^[10] In Chaplin, the defendant, Hicks, was a "well-known actor and theatrical manager." ^[11] Hicks invited women to submit their photographs to a local newspaper as part of a beauty

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competition. ^[12] The readers of the newspaper would then vote on fifty finalists, and the finalists would be entitled to present themselves to be personally judged by Hicks in hopes of being selected for one of twelve prizes. ^[13] The plaintiff submitted her photo and was selected as one of the finalists. ^[14] A letter was sent to her, but she never received it. ^[15] Therefore, the plaintiff alleged that the contract had been breached because she did not have the chance to present herself to be personally judged as the contest promised. ^[16] The jury awarded her £100 for the lost chance of winning one of the twelve prizes. ^[17] Hicks appealed, stating the damages were too speculative. ^[18] However, the appellate court affirmed the lower court's findings and held that her loss of chance to win a prize was a right that had value and for which the trier of fact should determine the amount of damages. ^[19]

The more contentious application of the loss of chance doctrine is in the negligence context where, unlike breach of contract claims, "causation . . . is an element of the cause of action." ^[20] The most controversial use is in medical malpractice situations where a "plaintiff cannot prove by a preponderance of evidence that defendant caused traditional damage." ^[21] One of the earliest cases, and perhaps the most cited by courts adopting the loss of chance doctrine in the medical malpractice context, is Hicks v. United States. ^[22] In Hicks, a doctor negligently failed to diagnose a patient's illness, and, as a result, the patient died. ^[23] The defendant argued that Hicks's estate could not prove the misdiagnosis caused her death. ^[24] However, the court rejected this argument, stating:

When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the

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patient would have lived had she been hospitalized and operated on promptly. ^[25]

Hicks "has come to be cited for the proposition that traditional notions of 'more likely than not' causation pose a problematic barrier to recovery by patients who have experienced poor medical outcomes due to a doctor's failure to diagnose and that other theories of recovery may...