"loss of Chance" in Utah?
| Jurisdiction | Utah,United States |
| Citation | Vol. 9 No. 9 Pg. 8 |
| Pages | 8 |
| Publication year | 1996 |
Daniel J. Andersen, J.
I. THE "LOSS OF CHANCE" DOCTRINE IN FAILURE TO DIAGNOSE CASES
To maintain a medical malpractice action in Utah, a plaintiff must establish by a preponderance of the evidence: (1) a duty defendant owes plaintiff; (2) a breach of that duty, (3) causation (including proximate causation), and (4) resulting injury or damages. Martin v. Mott, 744 P.2d 337, 338 (Utah App. 1987). Since recovery historically has been limited to those cases where the plaintiff can prove the conduct of the defendant is the cause in fact of the injury, the most difficult element to prove in failure to diagnose cases has been the element of causation. The level of proof required is articulated as "by a preponderance of the evidence" or "to a reasonable medical probability."
Over the past few years, the traditional standards of proof have been challenged by plaintiffs arguing that as a result of a negligent diagnosis they have "lost a chance" of a better recovery. Plaintiffs argue that there i is injustice in allowing a patient who loses I a 50.1 percent chance of survival to bring a cause of action while barring a patient who loses a 49.9 percent chance of recovery.[1] Such a standard creates an "all-or-nothing" approach to recovery. Opponents, on the other hand, argue that lowering the standard of proof required merely permits more plaintiffs to recover, but provides no greater justice.
Lowering the standard of causation is at the root of the "loss of chance" doctrine. Yet how to adjust the standard of causation in failure to diagnose cases is confusing and not uniform in its application. Utah had its first brush with the "loss of chance" doctrine in George v. LDS Hospital, 797 P.2d 1117 (Utah App. 1990), cert, denied sub nam, George v. Lloyd, 836 P.2d 1383 (1991). More recently in Andersen v. Brigham Young Univ., 879 F.Supp. 1124 (D. Utah 1995), aff'd, 89 F.3d 849 (10th Cir.) (Table), No. 95-4068 (June 27, 1996), the United States District Court for the District of Utah confronted one of the theories advanced under the "loss of chance" doctrine and concluded that, "Utah has not adopted a separate cause of action permitting recovery for a reduced chance of long-term survival . ., ." Andersen v. Brigham Young Univ., 879 F.Supp. at 1130. Andersen answers part of the "loss of chance" question, but there are other approaches which may survive after Andersen. This article will discuss the three main approaches to the "loss of chance" doctrine and the doctrine's status under Utah law.
II. THE HYPOTHETICAL - OR IS IT?
X, a male in his early twenties, goes to Doctor Q complaining of night sweats, intermittent coughing and occasional headaches/nausea. After an initial examination, Dr. Q concludes the symptoms are consistent with a viral syndrome and invites X to return the next week if he is not feeling better. X did not return for two weeks. At the second visit, Dr. Q prescribes an antibiotic and again invites X to return the next week for blood tests. Once again X did not return for two weeks because, according to X, the antibiotic had provided some relief and he was doing better. When X did come again, Dr. Q conducted blood tests, prescribed another antibiotic and told X to return if the symptoms persisted. X never returned. A little over a month later, Dr. Q received a telephone call from X indicating that the symptoms had decreased. Dr. Q invited X to come back if his symptoms returned. That same month X moved to California where he remained asymptomatic for four months. Then without an I increase in symptoms, X developed a fever I and began vomiting. X went to the UCLA Medical Center Emergency for assistance. After being admitted and undergoing several weeks of extensive testing, X is diagnosed with Hodgkin's Disease.
X is given a successful course of treatment and in time achieves a disease-free condition. X then retains an expert who opines that because Dr. Q did not diagnose Hodgkin's Disease, X's statistical chances of remaining disease free for five years are reduced from 80% to 60%. X sues Dr. Q for a "loss of chance" of better recovery.
III. "LOSS OF CHANCE" APPROACHES[2]
At the headwaters of the "loss of chance" doctrine is Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966). In Hicks, the Fourth Circuit Court of Appeals unknowing lowered the standard of causation when the Court stated:
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.
386 F.2d at 632. (Emphasis added). From this language, numerous courts have used the "substantial possibility" language in "loss of chance" situations. Three principal approaches have developed:
A. Substantial Factor Approach
The first approach (from Hicks) reduces the proximate cause standard to allow recovery when it is proven there was a "substantial possibility" or "substantial chance" of a more favorable outcome. Therefore, a plaintiff need not show...
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