Loss of chance in medical malpractice: A look at recent developments

THE acceptance and application of the loss of chance doctrine

THE DOCTRINE

In its purest form, loss of chance is a doctrine permitting recovery of damages for the destruction or reduction of prospects for achieving a more favorable outcome. It most often arises in failure to diagnose cases, but it also has been recognized and applied in a variety of similar instances in which a patient who already is ill or stricken claims medical mistreatment that resulted in the loss of a chance of a better outcome. Absent timely diagnosis or other alleged failure, so the argument goes, the patient's chances for cure or a more favorable outcome would have been greater, with the result a palpable loss deserving of compensation.

The effect of the doctrine is that it alters the traditional "more likely than not" burden of proof. Under loss of chance, claimants are permitted to recover damages even though they have only a 50 percent or less chance of survival or a better outcome prior to the negligence. Absent the special treatment or recognition of "loss" that the loss of chance doctrine affords, plaintiffs otherwise would not be able to meet the traditional burden of proof as to causation (greater than 50 percent) as it is "more likely than not" that the underlying condition or disease caused the harm.

While the loss of chance doctrine can be traced to both early contract and tort cases, the most commonly cited modern source is a 1981 Yale Law Review article by Professor Joseph King Jr., "Causation, Valuation and Chance in Personal Injury Torts Involving Pre-Existing Conditions Future Consequences."1 This article is a must-read for defense counsel as it has been widely cited and discussed in virtually every jurisdiction that has adopted the doctrine.

APPLICATION

In theory, loss of chance is applicable to any type of case in which the chances of a better outcome have been diminished, although it has received limited acceptance in non-medical malpractice actions. As to medical malpractice, the doctrine has been raised in a variety of contexts, including claims for failure to call emergency services in a timely fashion,2 claims for failure to make timely admissions to hospitals3 and failures to defibrillate heart attack patients.4

The loss of chance doctrine most frequently arises in claims alleging negligent failures to diagnose. In those instances, it is alleged that a negligent delay in the diagnosis of a serious underlying condition or disease, such as cancer, has resulted in the loss or reduction of the chances of a more favorable outcome, or even cure.

POLICY JUSTIFICATION

The primary justification for recognizing loss of chance, as stated by King, is the notion that life is precious and even the loss of a small chance of cure or better result is deserving of compensation. A similar justification is the argument that acts of negligence as to patients with poor prognoses should not go unredressed and that it is fundamentally unfair to deny or permit recovery based on whether the patient had a 50 percent or greater chance of a better outcome.

Proponents also assert that it is unfair to deny recovery where any uncertainty as to outcome was caused by the defendant, another argument made by King. Another common justification is that without loss of chance, healthcare providers may be less inclined to treat ill patients or to perform a full spectrum of testing in less than optimum cases.

SURVEY

A. Recognizing Loss of Chance

A survey of the 50 American states reveals that 24, as well as Puerto Rico, have adopted a form of the loss of chance doctrine in medical malpractice actions and recognize loss of chance as a compensable interest.

These states are:

* Arizona: Thompson v. Sun City Community Hospital, 688 P.2d 605 (Ariz. 1984).

* Colorado: Boyria v. Pash, 960 P.2d 123 (Colo. 1998); Sharp v. Kaiser Foundation Health Plan, 710 P.2d 1156 (Colo. App, 1985).

* Connecticut: Borkowski v. Sachetti, 682 A.2d 1095 (Conn.App. 1986); Poulin v, Yasner, 781 A.2d 422 (Conn.App. 2001).

* Georgia: Richmond County Hospital Authority v. Dickerson, 356 S.E.2d 548 (Ga.App. 1987); Dowling v. Lopez, 440 S.E.2d 205 (Ga. 1993).

* Hawaii: McBride v. United States, 462 F.2d 72 (9th Cir. 1972).

* Illinois: Holton v. Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997); Reardon v. Bonutti, 737 N.E.2d 309 (Ill.App. 2000).

* Indiana: Cahoon v. Glessie, 734 N.E.2d 535 (Ind. 2000), vacating Cahoon v. Cummings, 715 N.E.2d 1 (Ind.App. 2000); Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995); Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000).

* Iowa: Wendland v. Sparks, 574 N.W.2d 327 (Iowa 1998); Deburkarte v. Louran, 393 N.W.2d 131 (Iowa 1986); Sanders v. Ghristt, 421 N.W.2d 520 (Iowa 1988).

* Kansas: Roberson v. Counselman, 686 P.2d 149 (Kan. 1984); Delaney v. Cade, 873 P.2d 175 (Kan. 1004); Pipe v. Hamilton, 56 P.3d 823 (Kan. 2002).

* Louisiana: Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La. 1986); Smith v. State, 676 So.2d 543 (La. 1996).

* Missouri: Soper v. Bopp, 990 S.W.2d 147 (Mo.App. 1999); Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. 1992); Holloway v. Cameron County, 18 S.W.3d 417 (Mo.App. 2000).

* Montana: Aasheim v. Humberger, 695 P.2d 824 (Mont. 1985).

* Nevada: Perez v. Las Vegas Medical Center, 805 P.2d 589 (Nev. 1991).

* New Hampshire: Lord v. Lovett, 770 A.2d 1103 (N.H. 2001).

* New Jersey: Scalfidi v. Seiler, 574 A.2d 398 (N.J. 1990).

* New Mexico: Alberts v. Schultz, 975 P.2d 1279 N.M. 1999).

* New York: Kallenberg v. Beth Israel Hospital, 357 N.Y.S.2d 508 (App.Div. 1st Dep't 1974; but see Mortenson v. Memorial Hospital, 483 N.Y.S.2d 264 (App.Div. 1st Dep't 1984); Birbeck v. Central Brooklyn Medical Group, 2001 N.Y. Slip Op. 401330 (N.Y. 2001).

* Ohio: Roberts v. Ohio Permanente Medical Group, 668 N.E.2d 480 (Ohio 1996); McMullen v. Ohio State University Hospitals, 725 N.E.2d 1117, 1121 (Ohio 2002); but see Liotta v. Rainey, 2000 Ohio App. Lexis 5475 (Ohio App. 2000).

* Oklahoma: McKellips v. Saint Francis Hospital, 741 P.2d 457 (Okla. 1987).

* Pennsylvania: Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978).

* Puerto Rico: Morales v. United States, 642 F.Supp. 269 (D. P.R. 1986).

* Vermont: Short v. United States, 908 F.Supp.2d 227 (D. Vy. 1998); Lockwood v. Lord, 657 A.2d 555 (Vt. 1994);

* Washington: Herkovits v. Group Health Co-operative of Puget Sound, 664 P.2d 474 (Wash. 1981);

* West Virginia: Thornton v. CAMC, 305 S.E.2d 316 (W.Va. 1983); and

* Wisconsin: Ehlinger v. Sipes, 454 N.W.2d 754 (Wis. 1990); Fischer v. Ganju, 485 N.W.2d 10 (1992).

B. Rationales for Lost Chance

The loss of chance jurisdictions have adopted one of four approaches: (1) increased risk of harm, (2) substantial possibility, (3) a combination or slight variant of the increased risk/substantial possibility approaches, and (4) pure chance or separate injury.

1. Increased Risk of Harm

Under the increased risk of harm approach, "a prima facie case of liability is established where expert medical testimony is presented to the effect that the physician's conduct did, with a reasonable degree of medical certainty, increase the risk that the harm sustained by plaintiff would occur."5 The degree of certitude normally required as to causation is "relaxed" as any decrease in the chance of survival or better outcome can constitute an increased risk of harm even if the plaintiff's chances of survival or better outcome were less than 50 percent before the negligence.

2. Substantial Possibility

A similar approach adopted by other states allows recovery where the negligence is found to have resulted in a "substantial" loss of a patient's chances of survival. Once evidence of a loss of a substantial possibility of survival or better outcome is presented, it is up to the jury to determine causation. The Washington Supreme Court was an early proponent of this approach. In Herkovits,6 a physician was alleged to have failed to diagnose lung cancer. It was claimed that there had been a six- month delay in diagnosis, which caused the decedent to lose a 14 percent chance of surviving five years. The court held that the loss of a 14 percent chance was "substantial" and therefore compensable.

3. Combination

Some states have adopted variant standards incorporating a combination of the increased risk of harm and the substantial possibility approaches or utilizing slightly different terminology. For instance, under Fischer,7 Wisconsin requires a showing that (1) the omitted treatment was intended to prevent the very harm that resulted; (2) the plaintiff would have submitted to the omitted treatment; and (3) it is more probable than not that the treatment would have lessened or avoided the injury. It is then for the trier of fact to determine whether the alleged negligence was a substantial factor in causing the plaintiff's harm.

Illinois's loss of chance rule requires that "the defendant's failure to render a timely diagnosis more probable than not compromised the effectiveness of treatment received or increased the risk of harm to the plaintiff."8

4. Pure Chance

The pure chance or separate injury approach claims not to relax the causation requirement but instead focuses in on the alleged injury. Under this approach, a plaintiff is required to show, to a reasonable degree of medical certainty or probability, that the physician's failure to diagnose the underlying illness reduced a chance of survival. However, the compensable loss is the loss of chance, not the ultimate outcome. As with the other approaches, courts have not quantified what specific percentages constitute a "substantial" or meaningful loss of opportunity. Indeed, some states, like Louisiana, hold that any loss of chance is compensable and it need not be either "substantial" or even "reasonable."9

New Hampshire is a recent convert to the "pure chance" approach. In Lord,10 the New Hampshire Supreme Court addressed the propriety of a claim brought by a plaintiff who suffered a broken neck and who alleged that the defendant physician had misdiagnosed and mistreated the spinal injury, causing a loss of chance or a better recovery. According to the court, "a plaintiff may recover for a loss of opportunity injury in medical malpractice cases when the defendant's alleged negligence aggravates the plaintiff's preexisting injury that it deprives the plaintiff of a substantially better outcome." The court made clear that the compensable wrong was not the entire injury but the value of the lost opportunity.

C. Quantifying Damages

The jurisdictions that have adopted loss of chance also differ over quantifying damages. A minority of them awards full damages or compensation for the ultimate harm. The majority measure or "limit" damages to the value of the loss of chance alone. Even here, however, the courts differ in how this valuation is made. Some multiply full damages by the patient's chance of survival at the time of misdiagnosis or by the difference in the chance at the time of the alleged negligence versus the chance at the time proper treatment and actual diagnosis. Another variation takes the number of years on which the survival probability is based and divides it by the individual's life expectancy and then takes that percentage and multiplies it against the full damages.11

Some courts leave the issue of damages entirely to the jury's discretion. Louisiana is the leading proponent of this view. Under this approach, the compensable harm must be identified and separated from the harm associated with the underlying injury, but it is up to the jury to place a number on that "injury." According to the leading decision of the Louisiana Supreme Court, the measure of damages for loss of chance includes:

Evidence of loss of support, loss of love, and affection and other wrongful death damages is relevant, but not mathematically determinative, in loss of a chance of survival cases, as is evidence of the percentage chance of survival at the time of the malpractice. The plaintiff may also present evidence of, and argue, other factors to the jury, such as that a ten percent chance of survival may be more significant when reduced from ten percent to zero that when reduced from forty to thirty percent. The jury may also consider such factors as that the victim, although not likely to survive, would have lived longer but for the malpractice.12

In a recent Louisiana wrongful death decision, the Louisiana Court of Appeal stated that specific percentages for loss of chance need not be established in a case involving loss of chance of survival. According to the court, such percentages, if introduced as evidence, may be considered, but it is for the fact finder-judge or jury-

to focus on the chance of survival lost on account of [tortious fault] as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages.13

D. Rejecting Loss of Chance

Sixteen American states so far have rejected the doctrine. The rejection of loss of chance has occurred both judicially and legislatively. Those states are:

* Alabama: McAffee v. Family Center, 641 So.2d 265 (Ala. ;994);

* Alaska: United States v. Crosby, 48 F.Supp.2d 924 (D. Alaska 1999);

* Arkansas: Holt v. Wagner, 43 S.W.2d 128 (Ark. 2000); Finn v. Phillips, 2002 Ark.App. Lexis 522;

* California: Dumas v. Cooney, 1 Cal.Rptr.2d 584 (Cal.App. 1991); Bromme v. Pavitt, 7 Cal.Rptr.2d 608 (Cal.App. 1992);

* Florida: Gooding v. University Hospital Building Inc., 445 So.2d 1015 (Fla. 1984); Swain v. Curry, 595 So.2d 168 (Fla.App. 1992);

* Idaho: Manning v. Twin Falls Clinic & Hospital Inc,, 830 P.2d 1185 (Idaho 1992).

* Maryland: Fennell v. Southern Maryland Hospital Center Inc., 580 A.2d 206 (Md. 1990); Chudson v. Rata, 548 A.2d 172 (Md. 1988);

* Michigan: Falcon v. Memorial Hospital, 462 N.W.2d 44 (Mich. 1990); Weymers v. Khera, 563 N.W.2d 647 (Mich. 1997); limited by statutory amendment eliminating recovery for loss of chance in wrongful death actions (Michigan Compiled Laws, Section 00 2912(a) (2000));

* Minnesota: Fabio v. Belloma, 504 N.W.2d 758 (Mknn. 1993);

* Mississippi: Ladner v. Campbell, 515 So.2d 882 (Miss. 1987); Clayton v. Thompson, 475 So.2d 430 (Miss. 1985);

* South Carolina: Jones v. Owings, 456 S.E.2d 371 (S.C. 1995); Burroughs v. Worsham, 574 S.E.2d 215 (S.C.App. 2002);

* South Dakota: Jorgensen v. Vener, 616 N.W.2d 366 (S.D. 2000), further proceedings, 640 N.W.2d 485 (S.D. 2002), abrogated by South Dakota Codified Laws Section 20-9-1;

* Tennessee: Kilpatrick v. Bryant, 868 S.W.2d 594 (Term. 1991);

* Texas: Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397 (Tex. 1993); Marvelli v. Alston, 100 S.W.3d 460 (Tex.App. 2003);

* Utah: Andersen v. Brigham Young University, 1996 U.S.App, Lexis 15543 (10th Cir. 1996); George v. LDS Hospital, 797 P.2d 1117 (Utah App. 1990); Seal v. Gowars, 923 P.2d 1361 (Utah 1006); and

* Virginia: Murray v. United States, 215 F.3d 460 (4th Cir. 2000); Irby v. Richmond Pediatric Ass'n, 16 Va.Cir. 383 (1995).

Recent judicial rejections of the loss of chance have occurred in Alaska and Arkansas. In Crosby, the U.S. District Court in Alaska undertook a thoughtful analysis and concluded that adoption of the loss of chance would disrupt the traditional and statutory causation principles under Alaska law. Such a far-reaching policy decision should be for the state's legislature, it stated, pointing out that loss of chance was particularly ill-suited to a state like Alaska, where it is often necessary to deliver medical care in remote locations, reducing the availability of potentially beneficial tests and procedures.

In Holt,14 the Arkansas Supreme Court was less forthright, holding only that the claimant had not provided "citation of authority or convincing argument" and that it would revisit the issue on proper argument. Since Holt, an Arkansas intermediate appellate court has skirted the issue in an action against a physician for negligence in the alleged delay in the delivery of twins. The court held that even if loss of chance were recognized in Arkansas, the plaintiffs' expert had failed to opine what amount of chance was lost as a result of the alleged negligence. It stated:

A jury cannot be expected to know, without resort to speculation and conjecture, what chance of survival a premature baby in this situation would have had to begin with, what chance she lost due to [the defendant's] conduct, and whether that chance was worthy of recompense. The absence of helpful expert testimony is especially glaring in a case such as this one where it is not known what caused the baby's death.15

Both Michigan and South Dakota have rejected loss of chance through legislative enactment after each state's supreme court had adopted the doctrine. Michigan's statutory bar to the doctrine was adopted in 1999, while South Dakota's was enacted in 2002. Both statutory enactments are direct and unequivocal in their rejection of the doctrine.16

New Hampshire recently joined the fray. Following the recognition of loss of chance by the New Hampshire Supreme Court in Lord v. Lovett, two competing bills were introduced in the state's legislature. One seeks to abrogate the doctrine, while the other seeks to have the doctrine codified statutorily.17

E. The Undecided/Conflicted

Eight states-Delaware, Kentucky, Maine, Nebraska, North Dakota, North Carolina, Oregon, Massachusetts, Rhode Island and Wyoming-are either conflicted or have yet to address the issue specifically.

In Massachusetts, the state's highest court has recognized the substantial chance approach for purposes of medical malpractice offers of proof for pretrial tribunal medical malpractice screenings, but it has left the issue unsolved for purposes of trial, although at least one earlier intermediary court has applied the doctrine. In Bradford v. Baystate Medical Center,18 five of the justices of Massachusetts high court questioned a "rule of law that would totally exonerate a negligent physician from tort liability when the patient had a fair, but less then even chance of survival if the physician had not been negligent," while two of the justices found any adoption of loss of chance would constitute a "radical departure from traditional tort law" and leave to speculation the question of whether the alleged negligence resulted in injury or death.

Delaware is another apparently conflicted jurisdiction. In 1988 in Shively v. Klein,19 the Delaware Supreme Court labeled loss of chance as "innovative" but an issue that should be addressed by the legislature. But six years later in United States v. Cumberbatch,20 the court was faced with deciding whether to recognize loss of chance in a wrongful death action. The decedent died of pneumococcal meningitis, and although he had less than a 50 percent chance of surviving, his chances of survival would have been greater absent the alleged negligence. The court rejected the loss of chance doctrine on the ground that it was precluded by Delaware's wrongful death statute, finding that since the statute allowed actions only for the death of a relative and where the negligence "causes" the death of another, the statute did not allow for any judicial relaxation of the causation standard.

One year later the same court, in an alleged delay in the diagnosis of testicular cancer case, held that recovery could be had for any injury or damage resulting from negligence that increased the risk of harm-in this case the higher risk of death from testicular cancer.21

Most recently, in Edwards v. Family Practice Associates,22 the Delaware Superior Court held that while loss of chance is not applicable in wrongful death actions, it is a viable theory of recovery in survivorship actions where a demonstrable harm resulted. In Edwards, it was alleged that the defendant physician failed to timely diagnose stomach cancer. Although the decedent had less than a 50 percent chance of survival prior to the alleged negligence, he could proceed with a loss of survivorship claim stemming from the weight loss, wasting, improved healing ability and recuperation time he would have had absent the alleged negligence.

RECENT DEVELOPMENTS

A. Greater than Even Chance

Courts that have adopted loss of chance generally have refused to apply it in cases where the claimant has a better even chance of survival prior to the negligence. In McDermott v. Tweel,23 the Ohio Court of Appeals held that loss of chance is inapplicable to an untimely failure to diagnose cancer, even though there was expert testimony presented that the two defendant physicians had caused a 5 percent and 25 percent reduction, respectively, in chance of recovery. The court stated that in better-than-even cases the traditional rule as to causation applies and that some evidence that the alleged negligence "probably" caused the decedent's death is required.

B. Wrongful Death / Survival

The loss of chance doctrine is seemingly inconsistent with wrongful death statutes in that these statutes impose liability only for death. These statutes usually provide for a cause of action for the benefit of statutory beneficiaries. Loss of chance is not consistent with this basic structure as the claim is not for death but for the diminishment in the chances of survival. Indeed, most courts that have considered the issue have held that loss of chance is not compatible with wrongful death, absent legislative amendment, and must be asserted as an independent survivorship action.24

Nonetheless, some courts have held that loss of chance is consistent with wrongful death. In the Cahoon case, for example, the Indiana Supreme Court held that its recognition of loss of chance through the increased risk of harm approach was entirely consistent with the state's wrongful death statute, which, the court stated, did not "spell out what is meant by causation and that the increased risk of harm standard was an appropriate causation standard." The court adopted the holding of the intermediate appellate court: "The intent of the wrongful death statute was to allow an action to be brought by the decedent's personal representative against a defendant who may be held legally liable for the death, regardless of the mechanism of liability."25

Similarly, in Estate of Alfano v. Montowese Health and Rehabilitation,26 a trial court in Connecticut held that loss of chance must be brought under the state's wrongful death statute as an alternative theory of recovery and not as a separate common law cause of action.

C. "Substantial" Loss of Chance

While many of the jurisdictions that have adopted loss of chance state that the lost chance must be "substantial" to be actionable, virtually any stated loss has been found to be sufficient to present a jury issue. The Supreme Court of Kansas addressed that issue in Pipe,27 in which a surgeon was sued for an alleged failure to provide further treatment to a patient who was discovered to have a gangrenous bowel during surgery. The physician advised that the decedent's bowel was dead and that she would live only six to 12 hours. It was alleged that the physician deviated from the accepted standard of care by not performing more tests to determine if the condition was treatable.

Although the decedent's chances of survival were stated to be 5 to 10 percent at best, the court held this "loss" to be "substantial" as a matter of law. With very little analysis, it summarily found that "a 10 percent chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial."

D. Informed Consent

The Jorgensen case in South Dakota, which precipitated a state statute abrogating the loss of chance doctrine, exemplifies the extent to which courts have gone in adopting and applying loss of chance doctrine. David Jorgensen, while visiting a relative's home outside his home state, suffered a broken leg after jumping about seven feet from a deck to a concrete sidewalk. The impact shattered his lower leg and ankle, requiring the placement of pins and external fixation. When he returned home and was being treated by Dr. Michael Vener, an infection developed.

Jorgensen went to the Mayo Clinic and was advised and given the option of amputation or bone and skin grafts that would require two years of treatment and have a 60 percent chance of success. He made the informed decision to amputate.

Jorgensen and his wife subsequently sued Vener for failure to diagnose the infection and to refer to an infectious disease specialist, which was alleged to have decreased the chance of saving his leg. The South Dakota Supreme Court reversed the entry of summary judgment for the physician and expressly found that the loss of chance doctrine should be an actionable injury.28

On remand to the trial court, summary judgment was again entered for the physician in response to the plaintiff's deposition testimony that, given a 10 to 15 percent increase in the chance to save his leg if properly diagnosed, he would have chose amputation. The trial court concluded that the plaintiff had "abandoned any chance" by such an election barring any loss of chance claim as a matter of law.

On a subsequent appeal to the South Dakota Supreme Court, summary judgment was reversed again, and the case was remanded for trial. The court summarily held that the plaintiff "should not be deprived of the opportunity to prove the value of such damages simply because of an after-the-fact statement."

The ruling precipitated two dissents, a blistering one asserting that the decision effectively allowed a claimant both to disclaim a medical remedy and to sue for having been denied it:

Thus, a patient's own decisions about courses of treatment become wholly irrelevant. The doctor must pay for not giving a patient a choice the patient would never have chosen. The expansion of liability is breathtaking. Medical malpractice law now becomes a Pickwickian parlor game. There will be compensation for loss, even if only illusory, a product of statistics, conjured up and displayed in so many pixels. All a jury needs to do is count them, and, of course, add dollar signs.29

E. Literal Chance, Future and/or Unmaterialized Harm

A further difficulty with loss of chance is that courts have allowed recovery for the loss of future, yet unmaterialized, harm, as the Colorado Supreme Court held in Boryla v. Pash.30 There, the plaintiff asserted a claim for damages for a three-month delay in diagnosing breast cancer. She underwent a subsequent and prompt radical mastectomy and surgical removal of lymph nodes. Both at the time of trial in 1994 and the appellate ruling in 1998, the plaintiff had not had a recurrence of cancer since the 1990 operation. The court affirmed the $220,000 award. The expert testimony supporting the claim was that the delay increased the chances of metastasis or spread and curability because "every day counts."

Indiana's Supreme Court has reached a similar conclusion. In Alexander v. Scheid,31 a plaintiff suffering from cancer claimed that his chances of long-term survival were decreased by the physician's negligence. Although the cancer was in remission at the time of trial and there was no physical injury, the court concluded that the plaintiff still was entitled to recovery.

The issue was touched on in a slightly different context by the Ohio Court of Appeals in Dobran v. Franciscan Medical Center.32 A malignant mole was found, and the claimant opted for a sentinel lymph node biopsy. The node specimen became unfrozen by the time it reached the lab and could not be tested. The court reversed the entry of summary judgment, although there was no evidence of metastasis or other physical harm, on the grounds that the loss of the specimen destroyed a opportunity to determine whether cancer had spread.

Although the plaintiff had undergone successful treatment, the court held that metastatic cancer presents the risk of recurrence and the inability to screen the specimen resulted in a loss of an earlier detection of any recurrence. According to the court, that "opportunity had value to the plaintiff because the earlier the treatment the better chances of a successful outcome." The only testimony relating to injury was that the plaintiff's that he no longer enjoyed doing things that he liked to do in the past, such as golf and traveling, and that he was bothered by the chance the cancer could return and that he would feel better if he knew the percentage of survival.

F. Efforts at Expansion

Jurisdictions that have adopted loss of chance often are times faced with efforts to expand the already expansive theory of recovery even further. Such an effort was made in New Jersey in Reynolds v. Gonzalez.33 The plaintiff suffered a serious fracture of his left leg and claimed that subsequent nerve injury and paralysis resulted from the defendant physician's failure to diagnose and treat "compartment syndrome." The New Jersey Supreme Court reaffirmed the state's recognition of the increased risk-substantial factor standard where it is claimed that a physician's negligence worsened a pre-existing condition. Under this view, the plaintiff must demonstrate to a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a pre-existing condition and that the increased risk of harm was a substantial factor in causing the ultimate harm. The jury then determines the appropriate apportionment of damages.

In this case, however, the court rejected the effort to expand the doctrine. The plaintiff argued that the substantial factor element was not necessary in that a jury should be allowed to apportion damages once it determines that a defendant's negligence has increased the risk of harm posed by the pre-existing condition. The court recognized that to accept such a formulation would altogether "dispense with the need for proof of any casual connection between the alleged physician's negligence and the resultant harm."

G. Statute of Limitations

Failure to diagnose claims involving loss of chance can raise interesting limitation questions. The issue centers on when the applicable limitations accrues-at the time of the loss of chance or the time of the injury. If the injury is the loss of chance, then the limitations period will begin to run earlier then if the manifestation of harm is the accruing event.

In the Delaware case, Edwards v. Family Practice Associates Inc.,34 a wrongful death action, the plaintiff-executrix asserted a failure to diagnose the decedent's stomach cancer in a timely fashion. It was claimed that the decedent was treated between May 1995 and June 1996, that the cancer was present in 1995, that the decedent had a 40 percent chance of survival at that time, and that the cancer was not diagnosed until July 1996 when it had progressed to an advanced stage at which the chance of a five-year survival was less than 5 percent.

It was argued that the applicable two-year statute of limitations barred the action as the alleged breaches of the standard of care occurred in 1995 when the decedent had a 40 percent chance of survival and that, according to the decedent, he had a less than 5 percent chance of survival between January and March, 1996. Accordingly, it was argued that even though there were allegations of continuing negligence in 1996, that negligence was not the proximate cause of any loss of chance of survival, thus time-barring the action.

The Delaware Superior Court rejected the argument, finding that the record was not clear and that further facts needed to be developed. It acknowledged that the jury would have to determine whether there were any breaches in 1996 and whether any such breach, as opposed to any breaches in 1995, caused harm. If not, the case would be time barred.

H. Pleadings

In Robertson v. University Hospitals of Cleveland,35 the Ohio Court of Appeals upheld the trial court's denial of a request to amend a complaint to add a loss of chance claim. The court noted that trial was scheduled to take place in four months, and that if the new theory was added more time would be needed to allow for additional discovery. The court also noted that the theory was not newly discovered.

I. Experts

While expert testimony is crucial to all medical malpractice claims, it is especially so in loss of chance claims. As resort to loss of chance as a theory of recovery continues to grow, issues of the reliability and relevancy of supportive expert testimony will increasingly become a major battlefield for defense counsel.

In Holy Cross Hospital Inc. v. Marrone,36 the Florida Court of Appeal held that an expert's opinion that the plaintiff's cancer progressed from one stage to another due to a failure to diagnose must be subject to judicial scrutiny and screening for reliability before allowed before a jury. The court recognized that while staging assists in identifying treatment options, it is not intended to determine why the cancer spread.

An intermediate appellate court in Massachusetts also held an expert proffer insufficient as a matter of law in Tripp v. Cranberry Point Rehabilitation & Skilled Care Center.37 Under Massachusetts practice, all medical malpractice claims must be screened by a tribunal and an offer of proof containing an expert letter must be submitted. The tribunal applies the directed verdict standard in determining whether the offer of proof is sufficient to allow the case to proceed to discovery.

In Tripp, the court held that an expert proffer as to an alleged failure to diagnose colon cancer was insufficient to meet the directed verdict standard for purposes of the tribunal. According to the claimant's expert letter, the negligence of the defendant "did not allow an earlier diagnosis of [the decedent's] colon cancer, possibly at a pre-cancerous stage which would have offered a better prognosis for quality of life and long-term survival. The patient's ultimate demise was the direct and proximate result of the negligence of these defendants." The court held the letter insufficient on the issue of causation as there was insufficient evidence that it was "more probable than not the decedent would have lived longer or suffered less . . . . [w]e think it is pure speculation to suggest, as [the expert] did, that an earlier diagnosis possibly at a pre-cancerous stage would have offered a better prognosis."

In Hodgkins v. Bryant,38 the Texas Court of Appeals rejected an expert's affidavit offered in opposition to a motion for summary judgment. In the affidavit, the expert physician opined that the chance of survival at the time of the alleged misdiagnosis was 51 percent. The court found the opinion inadmissible as no basis was provided. The court noted that no studies, methodology or testing was offered to support the opinion and that the affidavit contained no testimony as to what treatment would have been provided and what rate of success existed with such treatment.

RUMINATIONS FOR THE DEFENSE

Claims based on loss of chance require vigilance by defense counsel. Even within a jurisdiction that has adopted the doctrine, defense counsel need to be deliberate in seeking to limit and control the doctrine, whether through properly focused instructions, in limine motions, evidence, experts or arguments to the jury or fact-finder. Some random thoughts for the defense are set forth below.

* While the policy considerations supporting loss of chance are certainly not insubstantial, the countervailing interests are no less compelling. It is unfounded to assume that absent such a theory of recovery health care providers will not provide proper treatment to critically ill patients or those patients whose prognosis is poor. There is no support for such a claim. Moreover, such an assertion is particularly unsupportable in many failure to diagnose cases, as the physician does not realize at the time of the purported negligence that the patient is ill.

* No matter what approach is used for loss of chance, the doctrine fundamentally alters causation, the burden of proof or damages, or all three.39 Similarly, allowing damages in an amount equal to the injury resulting directly from the loss of chance and not the ultimate condition is problematic as the loss of chance itself is that of avoiding the very ultimate condition which is purportedly not in issue.

The argument that negligent physicians benefit if loss of chance is not adopted rings hollow, as it is black-letter law that negligent conduct is only tortious if it results in compensable injury; absent such an injury, the physician has not avoided anything. Allowing a claimant to recover even a reduced amount of damages from a physician equates to holding physicians liable despite the greater likelihood that the plaintiff's ultimate condition would have resulted absent any negligence of the defendant physician.

So no matter what approach is adopted, loss of chance not only lowers the burden of proof as to causation but by allowing recovery in those instances where the lost chance is 50 percent or less, it effectively shifts the burden of proof regarding causation to the defendant physician.

* To allow the measure of proof in medical malpractice actions to be diluted by wholesale acceptance and uncontrolled use of loss of chance is to undercut the truth-seeking function of the courts. The practice of medicine is not an exact science. As a result of loss of chance, "healthcare providers could find themselves defending cases simply because another cause of action could possibly bring a better result."40 Given the continual pace of medical technological innovation, the "possibilities" of cures and better results will correspondingly expand. For instance, every mammogram is a potential plaintiff despite compelling evidence questioning whether the test truly results in a better outcome in many cases.

* The preponderance of the evidence standard already is a lenient standard of proof and represents a minimum level of certainty. When placed together with loss of chance, the truth- seeking function of the courts is compromised. Indeed, where, for example, a claim is made for a 25 percent loss of chance, the fact-finder is asked whether it was more probable than not (greater than 50 percent) that the physician caused the 25 percent loss of chance.

The Texas Supreme Court provides a compelling response to loss of chance proponents:

Imperfect as it may be, our legal system attempts to ascertain facts to arrive at the truth. To protect the integrity of that goal, there must be some degree of certainty regarding causation before a jury may determine as fact that a . . . To dispense with this requirement is to abandon the truth-seeking function of the law. The more likely than not standard is thus not some arbitrary, irrational benchmark for cutting off malpractice recoveries, but rather a fundamental prerequisite of an ordered system of justice.41

* Loss of chance also runs directly counter to efforts of most states to control and stem rising medical costs and insurance premiums. Loss of chance effectively creates a new category of damages and expands liability. It may well "encourage a proliferation of defensive medicine, an escalation of medical costs and an unwarranted expansion of liability exposure" with "troubling implications."42

* The observation of the Maryland Supreme Court is notable. In rejecting loss of chance, the court stated that from a purely statistical viewpoint, loss of chance produces more errors than traditional causation principles.43

The court used the following example: Assume there are 99 cancer patients. Each has a 33 percent chance of survival; each was subject to a failure of diagnosis; as a result, they have died. Under traditional principles of causation, none of the patients would be able to recover because it was more probable than not that underlying condition caused their deaths. Statistically, however, had all 99 patients received proper treatment, 33 would have survived and 66 would have died as a result of the underlying condition. So traditional causation principles would have resulted in 33 errors by denying recovery to all 99 patients.

On the other hand, applying the loss of chance rule allowing for a discounted recovery, there would be errors in all 99 cases. That is, with proper care, 33 of the 99 patients would have recovered, but each would only receive one-third of the appropriate recovery. The remaining 66 patients who would have died as a result of the pre-existing condition in any event then would receive a windfall by receiving a one-third recovery.

* The increased risk of harm approach to loss of chance appears to be a misapplication of established law. The increased risk of harm concept provides that if a one undertakes to care for a person in need of protection, where the failure to render care would "increase the risk of harm," then liability can be imposed. Seemingly lost in the jurisdictions that have adopted this approach to loss of chance is the fact that the increased risk of harm speaks to the imposition of a duty of care, not causation or damages. It was not intended to alter the traditional rule of damages or causation in anyway. Where a person acts and is in such a relationship to the claimant as to pose an increased risk of harm, a duty of care is imposed. The duty must still be breached and that breach must proximately cause an actionable harm.

* Courts that have adopted loss of chance accord little or no significance to the fact that courts have refused overwhelmingly to apply it in other contexts. The doctrine is rejected because of concerns of unnecessary expansion of liability and of verdicts based on speculation and conjecture. There is no principled justification for rejecting loss of chance in non-medical malpractice situations and yet allow its wholesale application in medical malpractice. To do so is to hold physicians responsible under a very different standard of liability from any other professional. The proper and viable concerns of conjecture are equally applicable and compelling in the medical malpractice context.

* If loss of chance is to be adopted, an argument arises as to whether physicians should be allowed to use the same concept to reduce damages. If a patient had a 49 percent chance of survival that was lost though misdiagnosis and therefore is entitled to recover 49 percent of the value of his or her life under the pure chance or proportional damage theory, then a patient who had a 51 percent chance of cure that was lost through negligence perhaps should be limited to 51 percent of the value of the life lost. Under existing tort concepts, claimants are entitled to recover all of their damages even when a physician is only 51 percent negligent. If the loss of chance is viewed as the compensable harm, then there would appear to be no logical reason not to apply it "across the board."44

* Central to any medical malpractice action or defense is the need for competent expert testimony and reliable proof. In loss of chance actions, this is especially true owing to the dynamic at work. The factfinder is forced to address the degree to which the underlying disease (such as cancer) advanced between the time of the defendant's treatment and the subsequent diagnosis, and the extent to which earlier diagnosis and treatment would have altered the prognosis.

This is an inherent uncertainty. Moreover, claimants in such cases are seeking to walk a fine line in that they are asserting that the underlying condition was sufficiently advanced and apparent that it should have been diagnosed, while at the same time asserting that the cancer was not so far along so as to prevent a timely diagnosis that would have significantly approved the prognosis. Within this dynamic, an "expert" opinion is proffered that there has been a reduction in the likelihood of cure or survival because of the alleged negligence. It is the basis and quality of this expert opinion on which such a claim will rise or fall, and this requires defense counsel to scrutinize closely and challenge loss of chance opinions.

* Claimants routinely rely on survivability statistics to support loss of chance claims. These statistics for cancer are measured by fixed sets of time, such as five or ten years, but at no other time. If, for example, a plaintiff in a failure to diagnose action claims a loss of a 30 percent chance of surviving for five years, but has lived for three years without a recurrence, the survivability statistics are no longer applicable to this claimant. The loss of any chance greatly diminishes each year that the patient survives, and clinical studies do not usually keep account of this development. More fundamentally, statistics alone cannot accurately predict what will happen to a particular patient, because no two patients are alike.

* There also are a number of biases to consider, including "lead time" bias or the time advantage in diagnosis offered by screening over the natural course of the disease, which can skew survivability statistics.45 False negatives must be considered as well. If a certain screening technique has a false negative rate of 10 percent, it should reduce the loss of chance. Similarly, any proffer of statistics is truly relevant only if the pool or registry on which it is based is applicable to a particular claimant. This includes such things as age, general health and treatment. A study involving no treatment or different treatment from that undergone by the claimant may well not be probative of the chances of survival for the claimant.

* The use and reliance on staging can be equally misleading. The assertion that a claimant progressed from a Stage I to a Stage III or IV between the misdiagnosis and diagnosis, for instance, has superficial appeal, but staging was never meant to be a litigation tool. It is intended for medical treatment decisions. Staging does not identify when the cancer developed, when it metastasized, whether it was invasive or aggressive or whether an earlier diagnosis would have altered the outcome. In sum, a progression from one stage to another does not necessarily correlate to loss of survivability.

* Defense counsel must ensure that the evidence proffered in support of loss of chance claims is both reliable and relevant. The expert must be qualified and appropriate to render an opinion, and the opinion must be based on relevant and reliable information applicable to the particular plaintiff. A claimant's expert should not be allowed to opine that the plaintiff lost a substantial chance of cure or survival without specific reference to the specific methodology, basis and reliability of this opinion.

Defense counsel should oppose proffers based solely on statistics, and they should require, at a minimum, that the expert's methodology be reasonably supported by established studies, research and peer review. The source of the statistics must be identified and explored, and defense counsel must ensure that they relate to the particular plaintiff. If not, the evidence must be excluded.

* Defense counsel must seek to control and focus the issue of damages. At a minimum, they must ensure that recoverable damages are related only to those palpable harms resulting from the loss of chance, not the underlying condition. What is relevant is not the "loss of chance" but any resulting actual harm unrelated to the ultimate harm stemming from the underlying condition, such as additional surgery, medical costs and expenses.

* In failure to diagnose actions, defense counsel must give careful thought to how to address the common assertion that earlier treatment or diagnosis would have led to a better outcome. This is not an easy task, for in many instances it is generally true. However, this premise is not universally true. There is simply substantial authority urging caution in unquestioningly accepting this principle. In appropriate cases, jurors must be taught and disabused of the notion that earlier diagnosis necessary equates to better outcome. In many instances, "the clinician even if he diagnoses cancer at the earliest possible stage, is dealing only with the late stages of disease process."46

As one commentator noted:

The scientifically informed but ever hopeful public greets the purported breakthroughs [in cancer research] with enthusiasm. When treatment failure occurs following diagnosis which could have occurred earlier, there is a strong tendency to conclude that disability and/or death ensued because of the doctor's negligence. Until we correct the unduly high expectations of our diagnosis and therapeutic capabilities in this field, all of us will suffer the social consequences.47

CONCLUSION

The growing acceptance of loss of chance has and will continue to pose difficult problems for the defense of medical malpractice claims. The doctrine raises both significant policy concerns as to the proper scope of a physician's liability, as well as practical and strategic hurdles for defense counsel. It places great strain on the truth seeking function of the courts and defense counsel must be vigilant in responding to such claims.