Malpractice, Terminal Patients, and Cause in Fact

Mickels v. Danrad, 486 S.W.3d 327 (Mo. 2016)

This decision involved a physician who negligently failed to diagnose the presence of a malignant brain tumor, from which the patient was doomed to die. The patient first saw the physician when he experienced numbness, blurred vision, and headaches. The physician sent the patient to an MRI scan, which he subsequently reviewed but made no diagnosis. Eleven weeks later, the patient arrived at a hospital in an altered mental state and underwent a CT scan of his brain, which showed a malignant and incurable tumor. Four months later, the patient died of that tumor. According to patient’s oncologist – who testified as a witness in a subsequent malpractice trial – the tumor was incurable when the patient first saw the physician. The plaintiffs offered no evidence controverting that testimony.

The physician moved for summary judgment. He claimed that the plaintiffs produced no prima facie evidence that could establish cause in fact. The trial court agreed with the physician, but ultimately the Missouri Supreme Court reversed that decision. The Court ruled 4-3 that the plaintiffs could not establish wrongful death, but they could still sue the physician for malpractice that shortened the patient’s life as representatives of his estate. The Court clarified in connection with this ruling that “This approach keeps the question of the time and date of the decedent’s death out of the causation analysis and confines it to the damages analysis where it belongs.” Id. at 331.

This decision enabled the plaintiffs to seek jurors’ determination on the available treatments that could prolong the patient’s life and use this factor as a basis for their entitlement to compensation.

The dissent, written by Judge Teitelman, disagreed with the Court’s proposition that a terminally ill patient can never suffer a wrongful death. According to Judge Teitelman, the physician in the case at bar may well have caused the patient’s death even when one assumes that the patient was doomed to die of the tumor. Id. at 332.

This opinion is flawed. When the patient first saw the physician, he faced two alternative prospects: (1) dying of the tumor after receiving best available treatment; and (2) dying of the untreated tumor. Hence, the physician’s malpractice may only have shortened the patient’s life. It certainly did not kill the patient. The Court’s decision was absolutely correct, and it also responds to the need to protect terminal patients against malpractice.