Compensation for a Patient’s Lost Chances to Recover


Read my Feature essay abut this issue.

September 23, 2014

Lost Chances to Recover: An Elaboration

Rash v. Providence Health & Services, — P.3d — (Wash.App.Div.3 2014)

An 82-year old patient with a critical heart condition was hospitalized to undergo surgery. The patient’s heart condition made her death inevitable, but she managed to prolong her life with the help of medications. The hospital negligently failed to give the patient blood pressure medications. As a result, the patient suffered a series of strokes from which she died. The hospital’s negligence thus accelerated the patient’s demise.

The patient’s heirs sued the hospital for medical malpractice. The patient’s preexisting condition doomed the plaintiffs’ claim that the hospital’s negligence was the but-for cause of her death. The plaintiffs consequently demanded compensation for the lost chance of a better outcome, pursuant to Herskovits v. Grp. Health Coop. of Puget Sound, 664 P.2d 474 (Wash. 1983); Mohr, 262 P.3d 490 (Wash. 2011). Their expert, however, could not estimate the lost chance, nor was he able to demonstrate that the neglected medications were more likely than not to prolong the patient’s life. All he was able to stand by was the estimation that the hospital’s failure to give the patient those medications was a “substantial factor” in accelerating her death.

Washington’s appellate court held that the plaintiffs’ suit was doomed to dismissal. The court justified that decision by the insufficiency of the plaintiffs’ “substantial factor” evidence and by the expert’s failure to quantify the lost chance.

The court’s first reason was absolutely correct. The “relaxed causation” doctrine that applies in Washington and many other states (see here at 1216-26) allows an aggrieved patient to establish causation by showing that her doctor’s malpractice was a “substantial factor” in the infliction of her injury. In the case at bar, the plaintiffs have failed to make this showing since the patient’s preexisting condition was the dominant cause of her death. An aggrieved patient becomes entitled to compensation also when he proves that the doctor’s malpractice had reduced her chance of recovery or better outcome. This cause of action, however, requires that the patient prove her lost chance by a preponderance of the evidence. The patient cannot combine the “substantial factor” rule with the lost chance doctrine to further reduce her burden of proof.

The court’s second reason, however, is not as convincing as the first. When a patient proves by a preponderance of the evidence that the doctor’s negligence had reduced her recovery or better-outcome prospect, absence of evidence quantifying the lost chance should not prevent the patient from recovering compensation. The patient’s evidential predicament would then be attributable to the doctor’s fault, which should make the patient entitled to every reasonable assumption in her favor in the court’s assessment of her lost chance. See here; and see more generally Ariel Porat & Alex Stein, Tort Liability Under Uncertainty (2001). Under the total absence of information, the patient’s lost chance would then be properly assessed at 50%.

November 17, 2013

Compensation for a Patient’s Lost Chances to Recover from Illness: A Redux

The Estate of Ruth M. Dormaier v. Columbia Basin Anesthesia, P.L.L.C., P.3d, 2013 WL 6037098 (Wash.App. Div. 3 2013)

Three days ago, Washington’s Court of Appeals issued a decision explaining the state’s Supreme Court precedents that entitle patients wronged by their doctors to recover compensation for their lost chances to recover from illness: Herskovits v. Group Health Cooperative of Puget Sound, 664 P.2d 474 (Wash. 1983), and Mohr v. Grantham, 262 P.3d 490 (Wash. 2011). The Court of Appeals ruled that this compensation entitlement is limited to cases in which the injured patient cannot prove causation by a preponderance of the evidence due to her preexisting condition. The Court explained that when a doctor’s malpractice reduces the patient’s chances to recover by more than 50%, the patient would be able to satisfy the preponderance requirement and recover full compensation. The Estate of Ruth M. Dormaier v. Columbia Basin Anesthesia, P.L.L.C., — P.3d —, 2013 WL 6037098 (Wash.App. Div. 3 2013).

This decision also has continued the prevalent, but mistaken, “arithmetical approach” to lost chances. Under this approach, when a doctor’s malpractice reduces his patient’s chances to recover from illness from 75% to 25%, and the patient ultimately does not recover, the doctor must pay the patient 50% (75%-25%) of her damage.

This approach is mistaken for the following reasons:

In probabilistic terms, the doctor’s malpractice moves the patient from the group of 100 patients, of which 75 recover and 25 do not, to an altogether different group of 100 patients of which only 25 recover and 75 do not. Of these 75 injured patients, 50 are victims of the doctor’s malpractice and the remaining 25 are patients that could not be cured to begin with (and for whom the doctor’s malpractice did not change anything). Hence, the patient’s probability of having been harmed by the doctor’s malpractice equals 50/75, i.e., 2/3. This probability makes the patient’s causation claim against the doctor more probable than not (>1/2). The patient consequently becomes entitled to full compensation under the preponderance requirement.
For illustrations of how courts systematically mishandle lost chances by applying the “arithmetical approach,” see Mays v. United States, 608 F. Supp. 1476 (D.C. Colo. 1985) (when doctor’s malpractice reduces patient’s recovery chances from 40% to 15%, patient should receive 25% of her damage); Herskovits v. Group Health Cooperative of Puget Sound 664 P.2d 474 (Wash. 1983) (upon finding that medical malpractice reduced patient’s chances to survive from 39% to 25%, the court held that patient’s widow is entitled to recover 14% of the full compensation amount for wrongful death); McKellips v. Saint Francis Hospital, 741 P.2d 467 (Okla. 1987) (upon finding that medical malpractice reduced patient’s chances to survive from 40% to 25%, the court held that plaintiff is entitled to recover 15% of the full damage); Alberts v. Schultz, 975 P.2d 1279, 1287 (N.M. 1999) (attesting that when doctor’s malpractice reduces patient’s chance to recover from 50% to 20%, patient should receive 30% of his total damage); Jorgenson v. Vener, 616 N.W.2d 366, 372 (S.D. 2000) (when doctor’s malpractice reduces patient’s chance to recover from 40% to 20%, patient should recover 20% of his total damage); Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008) (attesting that when doctor’s malpractice reduces patient’s chances to survive from 45% to 15%, and patient subsequently dies from his illness, the compensation amount for wrongful death should be set at 30%).

As I explained above, the patient should have recovered 29% of the total damage in Mays; 19% of the total damage in Herskovits; 20% of the total damage in McKellips; 37.5% of the total damage in the Alberts example; 25% of the total damage in the Jorgenson scenario; and 35% of the total damage in the Matsuyama example. For more details, see Ariel Porat & Alex Stein, Indeterminate Causation and Apportionment of Damages, 23 Oxford J. Legal Stud. 667 (2003); Ariel Porat & Alex Stein, Tort Liability Under Uncertainty 124 (2001).

Incidentally, Restatement (Third) of Torts: Physical & Emotional Harm § 26, cmt. n, relied upon by the Court of Appeals, agrees with this criticism of the “arithmetical approach” and with the calculation of lost chances proposed by Ariel Porat and myself. The “arithmetical approach” is only suitable for compensating plaintiffs for the wrongfully imposed risk of future illness or injury, as I explain here and here.

June 1, 2013

A patient’s decreased chance to survive or recover held actionable as a standalone damage

Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013)

In May 31, 2013, the Supreme Court of Minnesota has delivered an immensely important decision: it recognized as actionable a patient’s increased risk of dying resulting from her doctor’s negligent failure to secure timely diagnosis and treatment of cancer.

The defendant doctor was a family practice physician, and the patient was a baby. The baby had a lump on her buttock. According to the plaintiffs—the baby’s parents—the doctor saw, but did nothing about, the lump at the baby’s 2-, 4-, 6-, and 9-month well-baby checks. The doctor first documented the lump’s presence on the baby’s medical chart and referred her to a specialist only at the 1–year well-baby check. Shortly thereafter, the baby was diagnosed with alveolar rhabdomyosarcoma (ARS)—a rare and aggressive childhood cancer. Following this diagnosis, she underwent a tumor-removal surgery, chemotherapy and radiotherapy, but remained dangerously ill.

The parents’ malpractice allegations against the doctor were supported by two medical experts: a family physician and a pediatric hematologist/oncologist. The hematologist/oncologist estimated that the baby’s early referral for treatment by specialists (similar to the treatment she received belatedly) would have given her, at a minimum, a 60% chance to survive the illness, and that the defendant’s failure to make that referral—separately identified as malpractice by the family physician—had reduced this chance to 40%.

The Minnesota Supreme Court ruled that the reduction in the patient’s chances to survive her illness constitutes actionable damage in and of itself. More generally, the Court decided that a wronged patient can successfully sue her doctor for an increased risk of not recovering from the underlying illness and for a decreased life expectancy as a standalone damage. There is only one limitation to this new cause of action: the patient’s increased risk and decreased life expectancy must be substantial, rather than de minimis.

On the way to this conclusion, the Court reasoned that the “lost chance” doctrine is necessary for properly compensating tort victims and deterring potential wrongdoers. The Court also noticed that medical science makes the doctrine workable by providing statistical information that courts can depend upon. Finally, the Court overruled Fabio v. Bellomo, 504 N.W.2d 758, 762–63 (Minn. 1993)—a decision that refused to recognize an aggrieved patient’s future-illness prospect as an actionable standalone damage.

The Court has established the lost-chance doctrine for Minnesota in its broadest format. Thus far, courts recognizing the doctrine have limited its applicability to cases involving an already-injured patient, proven malpractice, and uncertain causation. Under this set of facts, the wronged patient is often unable to causally connect her injury to the doctor’s malpractice. The traditional preponderance-of-the-evidence requirement consequently dooms the patient’s suit (unless the patient can prove that she had a more than 50% chance of being cured by the proper treatment). To secure fairness to the patient and avoid the erosion of the doctors’ incentive to deliver proper treatment, courts have allowed the wronged patient to recover from the negligent doctor probabilistic compensation. The amount of that compensation equals the chance of complete or partial cure that the doctor’s malpractice denied the patient multiplied by the patient’s total damage.

The Court could easily categorize Dickhoff v. Green as a past-injury case. According to the plaintiffs, their daughter’s cancer became more severe and more acute than it would have been under the proper-treatment scenario. The monetary value of that aggravated affliction therefore must include the 20% (if not greater) reduction of her chances to survive. By taking this path, the Court could have bypassed the need to repeal FabioFabio was a future-injury case: there, the Court proceeded on the assumption that the plaintiff seeks compensation for her chances of developing breast cancer in the future after she was cured and became cancer-free.

Based on the work I coauthor with Ariel Porat, I believe that the Court’s broad formulation of the lost chance doctrine was right. Tort victims should be entitled to recover compensation for their increased chances of dying or becoming incurably ill. To give just a few justifications for that claim:
(1) As acknowledged by the Court in the Dickhoff case, any substantial increase in a person’s chances of dying or becoming dangerously ill erodes her well-being.
(2) Oftentimes, the aggrieved person needs money to pay for medical treatments that slow down the deterioration of her condition and prolong her life.
3) By the time that the person’s prospect of death (or injury) materializes, the wrongdoer may become judgment-proof or immune against suit under the statute of repose.
Finally, anyone who reads the Court’s decision will be amazed by the bravery, perseverance and spirit of the patient, Jocelyn Dickhoff, who will soon be seven years old. Jocelyn is a hero and I pray for her recovery.