LOSS-OF-CHANCE DOCTRINE IN WASHINGTON: FROM HERSKOVITS TO MOHR AND THE NEED FOR CLARIFICATION
Matthew Wurdeman
Abstract: Loss of chance is a well-established tort doctrine that seeks to balance traditional tort causation principles with the need to provide a remedy to patients whose injuries or illnesses are seriously exacerbated by physician negligence. In Washington, the doctrine continues to create significant difficulties for judges, juries, and practitioners. Wherever it has been applied, it has often created difficulties. The loss-of-chance doctrine needs clarification-definitive, sensible, and workable guidelines to ensure that loss of chance is consistently and fairly applied. Part of the problem lies in the fact that courts and litigants use the term "loss of chance" as if it has a single, fixed meaning, when in fact it is an umbrella term that covers three separate-though sometimes overlapping-theories of recovery. This Comment first identifies and explains the different meanings attached to loss of chance, and briefly describe its varying implementation among states over the past three decades. Next, it tracks the evolution of loss-of-chance doctrine in Washington State from its inception to its current ambiguous status. Then this Comment analyzes the difficulties arising from ambiguities in the Washington State Supreme Court's decisions in Herskovits v. Group Health Coop. of Puget Sound and Mohr v. Grantham, as well as and the recent Washington State Court of Appeals for Division III decision in Estate of Dormaier v. Columbia Basin Anesthesia, PLLC . The critique of these three cases underscores the extent to which ambiguities in loss-of-chance doctrine currently lead to inconsistent and unpredictable standards of causation and burdens of proof. This Comment concludes by suggesting concrete solutions to create a coherent and equitable doctrine that will allow plaintiffs to recover for loss of chance without creating incentives for unfair manipulation of common law tort standards. In order to illustrate the workability of these suggestions, this Comment applies them to the facts of Estate of Dormaier v. Columbia Basin Anesthesia, PLLC . While this Comment focuses primarily on Washington State law, the solutions presented are applicable in any jurisdiction that struggles with the loss-of-chance doctrine.
INTRODUCTION
Loss of chance is a well-established tort doctrine, and yet it remains something of a mystery. Loss of chance allows a plaintiff to recover for a lost opportunity to survive or recover from an injury or illness due to the negligence of a defendant, typically a physician.(fn1) When it applies, the doctrine stretches traditional causation boundaries, allowing recovery to plaintiffs who were never more likely than not to survive their illness or injury.(fn2) Such plaintiffs would have no viable claim under a rigid interpretation of common law tort principles.(fn3) Although the concept is simple, and there is widespread agreement among states on the general principles of the doctrine, in practice courts have struggled to develop consistent, workable rules for loss of chance. Similarly, legal scholars underestimated the complexity of this doctrine. In the almost fifty years since loss of chance was first addressed by a federal court sitting in diversity in Hicks v. United States,(fn4) scholars have given little attention to the doctrine beyond its basic contours. Much of the scholarship advocates for the adoption or rejection of the doctrine as a whole.(fn5) Yet in loss of chance cases, details matter.
This Comment critiques the struggle for coherence in the development of Washington State's loss-of-chance doctrine, and offers concrete suggestions to ameliorate the inequities and inconsistencies in current doctrine. While this Comment focuses on Washington law, these suggestions are also relevant to other jurisdictions encountering similar difficulties.
The 1983 decision in Herskovits v. Group Health Cooperative of Puget Sound(fn6) is a landmark case for loss-of-chance precedent.(fn7) A staple in many torts casebooks,(fn8) Herskovits addresses three potential approaches to the loss-of-chance doctrine-the all-or-nothing approach,(fn9) the substantial-factor approach,(fn10) and the proportional approach.(fn11) Herskovits officially incorporated loss-of-chance doctrine into Washington State law, at least in cases where a physician's negligence is one cause of a patient's death.(fn12) However, the court divided on whether to employ the substantial factor or proportional approach.(fn13) The lead opinion employed the substantial factor approach, which is a theory of causation even if the lost chance is less than even.(fn14) The concurrence employed the proportional approach, which is a theory of valuation-it determines what the lost chance is worth.(fn15)
Almost thirty years later, in Mohr v. Grantham,(fn16) the Washington State Supreme Court again addressed the loss-of-chance doctrine.(fn17) The Court officially adopted the Herskovits concurrence's proportional approach for the loss of a less than even chance, and extended the doctrine to include loss of chance of a better outcome in situations where patients survive negligent care but sustain serious injuries.(fn18) It seems as if the Court intended Mohr to clarify the loose ends of Herskovits. In fact, however, Mohr created more problems than it solved, potentially sowing confusion in future cases.
A recent Washington State Court of Appeals case, Estate of Dormaier v. Columbia Basin Anesthesia, PLLC,(fn19) illustrates the practical effects of the many unanswered questions of Herskovits and Mohr.(fn20) In an internally contradictory opinion, Dormaier utilizes all three loss of chance approaches to different ends, depending on the issue it is trying to resolve.(fn21) The Dormaier opinion demonstrates the need for clarification and distinct boundaries to help guide trial courts, practitioners, and juries.
In Part I, this Comment first defines the loss of chance, and then identifies and explains the five distinct doctrines for which the seemingly unitary label "loss of chance" has come to stand. It then demonstrates the uneven implementation of the different approaches among the states.
Part II traces the history of the loss-of-chance doctrine in Washington focusing primarily on Herskovits, and the more recent decisions in Mohr and Dormaier. Following its discussion of each case, this Comment highlights unresolved legal questions and demonstrates their potential negative implications in future cases. Parts I and II, taken together, explain the source of the confusion in loss-of-chance doctrine in Washington medical malpractice cases.
Part III of this Comment offers a coherent, predictable framework for Washington courts as they consider future loss of chance cases. It provides specific solutions to the problems inherent in Mohr and Dormaier. While this Comment's solutions are specific to the proportional approach as it stands in Washington State, the reasoning behind them is applicable in any jurisdiction currently struggling with loss of chance.
Finally, Part IV demonstrates the feasibility of implementing the proposed solutions by applying these solutions to the facts of Dormaier. Part IV clearly lays out what would be required of a plaintiff's attorney in order to successfully bring a loss of chance claim, and provides guidance to trial courts on how to handle the claim.
I. LOSS OF CHANCE: COURTS BLUR CAUSATION BOUNDARIES TO BENEFIT PLAINTIFFS
The loss-of-chance doctrine has been frequently misunderstood.(fn22) In part, this misconception arises from the term itself. Black's Law Dictionary defines the loss-of-chance doctrine as "a rule in some states providing a claim against a doctor who has engaged in medical malpractice that, although it does not result in a particular injury, decreases or eliminates the chance of surviving or recovering from the preexisting condition for which the doctor was consulted."(fn23) In the medical malpractice context, loss of chance is most frequently applied in cases of misdiagnoses, where a timely diagnosis would have given the patient a statistically better opportunity to achieve a more favorable outcome.(fn24) For example, a patient arrives at the doctor's office with a complaint and, due to a breach of the applicable standard of care, the doctor makes an incorrect diagnosis or fails to make a diagnosis. Sometime later, the patient is properly diagnosed. Had the patient been properly diagnosed at the outset, her chances of recovery would have been 40%. However, due to the delayed diagnosis, the patient's chances of recovery are now 10%. This classic example of loss of chance is deceptively intuitive. In fact, it conceals the complexity of the doctrine. In practice, loss of chance is an umbrella term, the meaning of which varies between jurisdictions(fn25) and sometimes-as in Washington-even within jurisdictions.(fn26) For example, in medical malpractice cases-the paradigmatic loss of chance context-there are currently no less than five different approaches to loss of chance, the differences between which can affect whether a plaintiff has a viable cause of action in a particular case. This Part explains those five approaches.
A. Approaches to the Loss-of-Chance Doctrine
Much of the confusion surrounding loss of chance centers on whether it is classified as a...
