Medical Defense Committee

Transcription

1 March, 2003 No. 5 Medical Defense Committee In This Issue Doug Pomatto, is the managing partner of Heyl, Royster, Voelker & Allen's Rockford, Illinois, office. He represents insured and self-insured clients, especially in complex cases in the areas of medical malpractice, products and professional liability. He is a former president of the state defense organization, Illinois Association of Defense Trial Counsel (IDC). The author wishes to acknowledge the significant contribution of Andy Roth, third year law student at Northern Illinois University School of Law, to this article. The IADC 2003 Annual Meeting June 28-July 3 Today s Attorney Exploring Tomorrow s Issues Make it to Maui We will meet you there! Understanding and Defending Lost Chance Claims By Douglas J. Pomatto A causation challenge is a last line of defense on liability issues before having to confront the touchy issue of damages. Difficult to present and win at trial in light of liberal causation instructions given to the jury, a causation defense traditionally had to be a pretrial strategy by way of a motion for summary judgment. Now, many states are allowing claims for lost value of chance, further diluting defense counsel s ability to argue causation and win. Understanding the genesis of these claims will best allow the defense attorney to defend them. To prove the causation element in a negligence action, the traditional view has been that the plaintiff must prove that the 1 However, conceptual difficulties arise in medical malpractice cases when, through the doctor s negligence, the patient is deprived of a chance for a better result. This idea is best understood through the following hypothetical: A patient with terminal cancer presents to a hospital. There exists a treatment that would give the patient a 10% chance of survival, but through the physician s negligence, the treatment is never offered and the patient dies. In this hypothetical, the deceased s estate can prove negligence on the part of the physician but cannot prove proximate cause under a traditional standard, since the negligence of the doctor could at most be seen as a 10% (not greater than 50%) cause of the death. The cancer was the real, or proximate, cause of the death. Thus, under a traditional standard, the defendant would be entitled to judgment as a matter of law, as it is clear the plaintiff will be unable International Association of Defense Counsel One North Franklin, Chicago, IL Phone: (312) Fax: (312) cbalice@iadclaw.org

2 to establish the causation element of their prima facie case by a preponderance; i.e., more probably true than not to a reasonable degree of medical certainty. Over the last 20 years, 38 states plus the District of Columbia have directly confronted the question of whether to allow some form of recovery for lost chance. Courts that have addressed the issue have generally been broken into three categories: (1) Those that reject the doctrine, (2) those that treat the loss of a chance as a separate injury and allow recovery for the proportionate value of that chance no matter how small, and (3) those who relax the traditional causation standard to below a preponderance to allow recovery for the underlying injury but then reduce the recovery proportionately by the percentage of lost chance. Most courts agree that the modern doctrine of lost value of a chance has its roots in two main sources. 2 The first source is found in 323(a) of the Restatement (second) of Torts, (1965), which states: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of harm, or... 3 Nearly every court who has addressed the loss of chance doctrine has cited to this language in the Restatement. 4 The most recent source of the modern lost value of a chance doctrine stems from the 1981 article by Professor Joseph H. King, Jr. 5 Professor King asserted that loss of chance is a compensable injury in itself, regardless of whether the plaintiff had below a 50% chance of survival before being treated by a physician. 6 King argued that the traditional all or nothing approach to causation was inconsistent with the goals of tort law, specifically deterrence and fairness. 7 King suggested that the measure of damages of the lost chance should be calculated by determining the value of the total injury then reducing it proportionally by the percentage of the lost chance. 8 Based on King s theory that the loss of a chance is a separate compensable injury, traditional notions of proximate cause are not altered. The plaintiff still has to prove by a preponderance that the defendant caused the loss of the chance, although that chance of survival/recovery may have been only 10%. Professor King s article was and still is influential and has been cited by a multitude of jurisdictions. 9 Shortly after Professor King s article, the Supreme Court of Washington became the first state supreme court to expressly allow recovery under the lost value of a chance doctrine in the groundbreaking case of Herskovits v. Group Health Cooperative. 10 It was undisputed in Herskovits that at the time of the negligent misdiagnosis, the patient had less than a 50% chance of survival. 11 The evidence at trial indicated that the misdiagnosis cost the plaintiff a 14% chance of survival. 12 The Supreme Court of Washington held that the 14% lost chance was sufficient to let the case go to the jury on the issue of proximate cause. 13 In the 20 years following the Herskovits decision, a multitude of jurisdictions have confronted the question of whether to allow recovery for the lost value of a chance. It appears 12 states have not: Alaska, Arkansas, Colorado, Hawaii, Kentucky, Maine, North Carolina, North Dakota, Rhode Island, Utah, Vermont, and 2

3 Wyoming. One theory under which courts allow recovery under a lost chance premise is called pure chance and is the subject of Professor 14 This approach is best understood in the context of a wrongful death case where the patient would have probably died anyway, but the physician s negligence cost him some small chance of recovery. Under a pure chance theory, the compensable injury is not the ultimate death, but rather the lost chance. Thus, the plaintiff can recover no matter how small the chance was. Once it is established that the plaintiff lost a chance of survival, the amount recoverable is calculated by determining the full amount of the underlying injury then multiplying it by the percent chance of recovery that was lost. 15 Currently, there are ten states that have adopted pure chance reasoning. 16 The practical impact of this theory is to preclude summary judgment for the defense, even if the plaintiff can establish only a 1% loss of chance. In response to this unfairness to defendants, some courts in pure chance jurisdictions have created an artificial threshold that plaintiffs must establish before their case can go to a jury. For example, the Supreme Court of Nevada compensates the loss of the chance as a separate injury consistent with pure chance yet requires that the lost chance be substantial before the case can go before a jury. 17 While it is clear that under a pure chance theory a plaintiff can recover proportionately when their lost chance is not the probable cause of the underlying injury, a potential difficulty arises when the plaintiff can prove that the loss of chance was the probable cause of their injury. This difficulty arises because if the plaintiff can prove that the doctor s negligence resulted in plaintiff losing more than a 50% chance of recovery, plaintiff does not need the pure chance theory, as he can proceed under a traditional causation standard and obtain full recovery. 3 This problem has been addressed in the recent New York Case of Birkbeck v. Central Brooklyn Med. Grp., P.C. 18 In Birkbeck, the Court reasoned that when a plaintiff can prove they lost a 70% chance of a better recovery, his damages should be reduced proportionately to 70% of total damages. 19 The Supreme Court of Ohio has expressly disagreed with the reasoning in Birkbeck and has essentially held that a plaintiff has a choice as to whether to bring their action under loss of chance or under a traditional negligence theory. 20 The second theory of recovery for lost chance has been deemed the relaxed causation approach. Under this approach, it is the underlying injury that is compensated, not the loss of the chance. Courts allow the question of causation to go to the jury, even when it is clear that the plaintiff cannot establish causation by a preponderance. Once the percentage of lost chance is determined, the damages are reduced proportionately, much like under a pure chance theory. There are currently 11 states that employ the relaxed causation approach. 21 In most jurisdictions that employ this reasoning, courts create an artificial threshold that the plaintiff must establish before the case can go to the jury in place of the usual preponderance standard. Examples of such thresholds include that the plaintiff has the burden of proving that a substantial or significant chance of survival or better recovery was lost. 22 These novel standards beg the question of what is a substantial loss of chance. Courts are hesitant to articulate a certain percentage, but it is obvious that it can go below a 50% probability. Thus, the real question becomes how low can the plaintiff s lost chance percentage go and still be substantial and thus avoid judgment as a matter of law? Jurisdictions are hesitant to articulate a bright line percentage of how small a percentage the lost chance can be and still be actionable

4 ( substantial ). The Supreme Court of Nevada opined that it would be doubtful that a 10% loss of chance would be actionable, 23 the Federal District of Kansas opined that a 30% chance would be actionable, 24 the Michigan Supreme Court held that a 37.5% chance would be actionable, 25 and a New York Appellate Court argued in dicta that a 5-10% loss of chance would be actionable. 26 The lowest percentage to be expressly held actionable by a state supreme court was in the recent Kansas case of Pipe v. Hamilton. 27 In Pipe, the Kansas Court held that as a matter of law, a 10% loss of chance is not token or de minimus. 28 The practical impact of this decision is that when a plaintiff can establish that a doctor s negligence cost him a 10% chance of a better result, then summary judgment for the defense is precluded and a jury question is created. A jurisdiction that attempts to harmonize recovery in lost chance cases with traditional notions of causation is Illinois. In Holton v. Memorial Hospital, 29 the Illinois Supreme Court rejected the separate injury ( pure chance ) approach. 30 While the court refused to admit that it was loosening traditional proximate cause standards, 31 it reaffirmed that a plaintiff must show that the defendant s medical malpractice more likely than not caused their injury, 32 yet eventually holding that cases can to go to the jury when it is clear that the plaintiff cannot prove an over 50% probability that the physician s negligence caused their injury. 33 The Illinois court attempted to justify their stance by citing to the Illinois policy that does not require a plaintiff to prove that a better result would have occurred had it not been for the doctor s negligence. 34 The court concluded that a plaintiff must only show to a reasonable degree of medical certainty that a negligent delay by the doctor reduced the effectiveness of the treatment or increased the risk of harm. 35 Despite its justifications, there can be little doubt 4 that what the Illinois Supreme Court did was to lower the causation threshold. While the current trend is toward acceptance of the lost chance doctrine on some level, there are still 17 states, plus the District of Columbia, that outrightly reject theories of recovery for a lost chance. 36 * * * Despite courts across the country attempting to dilute the causation threshold of proof, it seems there remain effective arguments that can be made to rebut a lost chance claim. Depending on the actual proof, a speculation and conjecture argument could be made in any setting, and particularly where the testimony only supports a de minimus cause. At the very least, an argument that causation proof does not meet a substantial and significant threshold would lie. As such, summary judgment would be in order. At a deposition of plaintiff s expert, listen closely to the words used that frame the expert s opinion and pose leading questions carefully. Depending upon what state you practice in, an unprepared and/or unsophisticated plaintiff s expert might not be able to quantify the lost chance percentage; or with a correctly framed question, that same witness may not be able to admit that the effectiveness of treatment has been decreased or the harm increased. At trial, it would seem the advantage would shift to the defense on the sensitive issue of whether or not to suggest to the jury a dollar figure for damages. The argument could be made that the evidence shows the chance or opportunity for recovery would be slight, and in the event of a jury award, it should be reduced significantly to the value of the slight chance in dollars rather than entire dollar value of the injury or death. Depending on your jurisdiction s jury instructions, one might caution the jury, if they are inclined to award damages, to consider the value of the award first and then to determine the

5 percentage lost chance so as to prevent the jury from trumping up the value of the entire claim in order to overly compensate the plaintiff for the small chance that was lost. In the end, on causation issues, defense counsel must continue to echo the words of the dissenting Illinois Supreme Court judge in Holton, when he stated, Proof to a reasonable probability ensures that the possible explanation for the cause of a plaintiff s injury are sufficiently narrow to allow a jury to determine liability. To permit a case to go to a jury on any less evidence invites the jury to impose liability based on speculation and conjecture. 37 Endnotes 1. See Restatement (Second) of Torts 433(B)(1) (1965). 2. See, e.g., Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000). 3. Restatement (Second) of Torts 323(a) (1965). 4. E.g., Holton v. Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997), Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995), Gardner v. Pawliw, 696 A.2d 599 (N.J. 1997), Hardy v. Southwestern Bell Telephone, Co., 910 P.2d 1024 (Okla. 1996). 5. Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L.J (1981). 6. Id. at Id. at See id. at See, e.g., Holton v. Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997), Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995), Pipe v. Hamilton, 56 P.3d 823 (Kan. 2002), Gardner v. Pawliw, 696 A.2d 599 (N.J. 1997), Hardy v. Southwestern Bell Telephone, Co., 910 P.2d 1024 (Okla. 1996), Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000) P.2d 474 (Wash. 1983) Id. at Id. at Id. at See generally Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L.J (1981). 15. See Jorgensen v. Vener, 616 N.W.2d 366, 372 (S.D. 2000). 16. See United States of America v. Anderson, 669 A.2d 73 (Del. 1995), Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995), Wedlund v. Sparks, 574 N.W.2d 327 (Iowa 1998), Smith v. State of Louisiana, Dept. of Health and Hosp., 676 So. 2d 543 (La. 1996), Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo. 1992), overruled on other grounds by Rodriguez v. Suzuki Motor Co., 936 S.W. 2d 104 (Mo. 1996), Aasheim v. Humberger, 695 P.2d 824 (Mont. 1985), Perez v. Las Vegas Med. Ctr., 805 P.2d 589 (Nev. 1991), Lord v. Lovett, 770 A.2d 1103 (N.H. 2001), Alberts v. Shultz, 975 P.2d 1279 (N.M. 1999), Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000). 17. E.g., Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 592 (Nev. 1991) N.Y. Slip Opinion 40133U. 19. Id. at pp McMullen v. Ohio State Univ. Hosp., 725 N.E.2d 1117, (Ohio 2000). 21. See Thompson v. Sun City Comm. Hosp, 688 P.2d 605 (Ariz. 1984), Holton v. Memorial Hosp., 679 N.E.2d 1202 (Ill. 1997), Pipe v. Hamilton, 56 P.3d 823 (Kan. 2002), Evers v. Dollinger, 471 A.2d 405 (N.J. 1984), Kallenberg v. Beth Israel Hosp., 357 N.Y.S.2d 508 (N.Y. App. Ct. 1974), Roberts v. Ohio Permanente Med. Group., 668 N.E.2d 480 (Ohio 1996), McKellips v. St. Francis Hosp., Inc., 741 P.2d 467 (Okla. 1987), Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990), Herskovits v. Group Health Coop., 664 P.2d 474 (Wash. 1983), Thornton v. CAMC, Inc., 305 S.E.2d 316 (W.V. 1983), Ehlinger v. Sipes, 454 N.W.2d 754 (Wis. 1990). 22. See id. at 184; see also Holton v. Memorial Hosp., 679 N.E.2d 1202, 1212 (Ill. 1997) (reasonable degree of medical certainty).

6 23. Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 592 (Nev. 1991). 24. Borgren v. United States, 716 F. Supp. 1378, 1383 (D. Kan. 1989). 25. Falcon v. Memorial Hosp., 462 N.W.2d 44 (Mich. 1990), superceded by statute, Mich. Comp. Laws (a)(2) (2000). 26. Stewart v. New York City Health and Hosp. Corp., 616 N.Y.S.2d 499 (N.Y. App. Ct. 1994) P.3d 823 (Kan. 2002). 28. Id. at N.E.2d 1202 (Ill. 1997). 30. Id. at 1210, n Id. at Id. at Id. at Id. 35. Holton, 679 N.E.2d at See McAfee v. Baptist Med. Ctr., 641 So. 2d 265 (Ala. 1994), Bromme v. Pavitt, 7 Cal. Rptr.2d 608 (Cal. Ct. App. 1992), Borkowski v. Sacheti, 682 A.2d 1095 (Conn. 1996), Grant v. American Nat. Red Cross, 745 A.2d 316 (D.C. 2000), Gooding v. University Hosp. Bldg., Inc. 445 So. 2d 1015 (Fla. 1984), Dowling v. Lopez, 440 S.E.2d 205 (Ga. 1993), Manning v. Twin Falls Clinic & Hosp., 830 P.2d 1185 (Idaho 1992), Fennell v. Southern Maryland Hosp., 580 A.2d 206 (Md. 1990), Joudrey v. Nashoba Communtiy Hosp., Inc., 592 N.E.2d 769 (Mass. App. Ct. 1992), Weymers v. Khera, 563 N.W.2d 647 (Mich. 1997), Leubner v. Sterner, 493 N.W.2d 119 (Minn. 1992), Ladner v. Campbell, 515 So. 2d 882 (Miss. 1987), Steineke v. Share Health Plan, 518 N.W.2d 904 (Neb. 1994), Horn v. National Hosp., Ass n, 131 P.2d 455 (Or. 1942), Jones v. Owings, 456 S.E.2d 371 (S.C. 1995), Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993), Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993), Blondel v. Hays, 403 S.E.2d 340 (Va. 1991). 37. Holton v. Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997). 6