Understanding “Lost Chances to Recover” (and Looney v. Moore)

Looney v. Moore, 2015 WL 4773747 (N.Dist.Ala. 2015)

My colleague, Professor Tony Sebok, drew my attention to an important recent decision, Looney v. Moore, 2015 WL 4773747 (N.Dist.Ala. 2015, by Chief United States District Judge Karon O. Bowdre). This decision adjudicated a textbook lost-chance case that involved the effects of oxygen saturation levels (SpO2) in premature infants with extremely low birth weights (ELBW). For any such infant, high SpO2 levels involved (among other complications) the risk of blindness caused by retinopathy of prematurity (ROP). On the other hand, low levels of SpO2 could lead to life-threatening neurodevelopmental impairments (NDI). The neonatologists’ customary practice was to maintain SpO2 levels in ELBWs between 85% and 95%. The effects of variations within that nationally accepted range were hitherto unknown.

To find out what those effects are, the defendants conducted a clinical trial. They divided the nationally accepted range of SpO2 levels into a high range (90%- 95%) and a low range (85%-90%). Infants whose parents agreed to participate in that trial—all having an extremely low birth weight—were randomly placed in either of the two groups. By making that division, the defendants tracked the infants’ rates of NDI, on one side, and ROP, on the other side.

The infants included two plaintiffs assigned to the low saturation group. After receiving the designated treatment, these plaintiffs developed serious neurological problems (but did not die). The third plaintiff was assigned to the high saturation group. This plaintiff developed ROP (but did not become blind). The plaintiffs claimed that the experimental treatments they received deprived them of a better chance of cure. To support this claim, their expert testified that “Participation in the study resulted in increased risk of the adverse effects of too much or too little oxygen administration—it was predictable that some infants would experience increased risk of ROP and blindness, while others would experience increased risk of death. The study’s results with increased mortality (in the low saturation group) and increased ROP (in the high saturation group) should have been anticipated before the first infant was enrolled.”

Judge Bowdre granted the defendants’ motion for summary judgment. She reasoned that the plaintiffs’ evidence could only establish an increased risk of future harm. As she properly observed, this cause of action was not recognized by Alabama law that controlled the case (see Hinton v. Monstanto Co., 813 So.2d 827, 829–30 (Ala. 2001) (holding that suits complaining about “nothing more than an increased risk that an injury or an illness might one day occur” are doomed to fail)). Moreover, according to Judge Bowdre, allowing the plaintiffs to move forward with that suit would violate Article III standing requirement. Future harm, she explained, does not give a plaintiff standing. Plaintiffs can only file a suit for damages they actually incurred.

As far as standing is concerned, Judge Bowdre’s decision was accurate in the context of Alabama law. As a general matter, Article III provides no independent constitutional grounds for dismissing suits filed in connection with future harms. As I explained in my work with Ariel Porat, a person’s prospect of becoming seriously ill in the future detracts from her present wellbeing. When a wrongdoing forces a person to live under an increased risk of becoming seriously ill, that person therefore deserves tort remedies. See Ariel Porat & Alex Stein, Liability for Future Harms, in Perspectives on Causation 221 (Richard S. Goldberg, ed., 2011). Hence, when applicable state law (e.g., Minnesota law: see Dickhoff v. Green, 836 N.W.2d 321 (Minn. 2013)) recognizes an increased prospect of future illness as actionable, the plaintiff will have the requisite Article III standing. For my analysis of the Dickhoff decision, see here.

Judge Bowdre’s decision that the plaintiffs had no recognized cause of action under Alabama law was correct as well. This decision proceeded on the assumption that the testimony of the plaintiffs’ expert, if found trustworthy following trial, could establish the defendants’ negligence (which it hardly could, given that the defendants’ treatment of the plaintiffs stayed within the conventional range of SpO2 levels).

Things, however, could have been markedly different (assuming, once again, that the defendants did commit malpractice) if the plaintiffs attempted to recover compensation for impairments they were likely to develop in the future as a result of their already-existing afflictions. Under this theory of the case, if the court were to find the defendants responsible for the plaintiffs’ existing illnesses—which, again, was a very big IF—it could not ignore the plaintiffs’ future impairments. The court would have to account for those impairments in determining the compensation amount that the defendants must pay the plaintiffs. See my analysis of the landmark Dickoff case, here and here.

Under the “lost chance” doctrine, on the other hand, the plaintiffs’ case was doomed even if Alabama law allowed plaintiffs to recover compensation for lost chances. Compensation for lost chances is determined by the difference between the plaintiff’s prospects of cure before and after the defendant’s malpractice. In the case at bar, this difference equaled zero. The plaintiffs’ parents allowed the plaintiffs to join the study when each plaintiff was facing a choice between two prospects of severe impairment: NDI and ROP. These prospects were—roughly—equally bad and equally inevitable (reportedly, the plaintiffs’ evidence did not differentiate between these two prospects). The plaintiffs’ parents had to tell doctors, on behalf of their infant children, whether they wanted to decrease the risk of NDI by increasing the risk of ROP, or vice versa. They had no other option. Consequently, there was no way to increase the plaintiffs’ prospect of cure.

Professor Michelle Meyer has a different assessment of Looney v. Moore, eloquently presented here and here.