News: The Supreme Court of North Carolina rejected the loss of chance doctrine for medical malpractice cases in a lawsuit involving a patient who suffered from a stroke and was not diagnosed for more than six hours after reaching the hospital.

The complaint alleged the physician’s failure to diagnose the stroke, even after a CT scan was performed and the patient’s symptoms persisted, deprived the patient of the possibility to receive a time-sensitive treatment, which may have increased her chances of a positive outcome with no or little permanent damage. The plaintiff’s argument, known as loss of chance, allows a plaintiff to be compensated for losing the possibility of a more favorable outcome. However, the supreme court rejected this argument, ruling the 50% threshold for proximate causation in medical malpractice cases also should be applied to a loss of chance claim, and the decision to lower such threshold should belong to state lawmakers.

Background: In late August 2014, the patient complained to her husband that her left arm and leg felt heavy and weak, and thought she might be having a stroke. Because the patient’s speech also appeared to be slurred, her family rushed her to a nearby hospital. She immediately told doctors about her symptoms, which had started approximately an hour earlier. A CT scan was performed, and the patient’s primary care physician was contacted about an hour and a half later. The hospital physician erroneously communicated the patient showed “no neurological deficits.” Her symptoms persisted through the night. The next morning, at approximately 6:00 a.m., hospital staff noted the patient was exhibiting left facial droop, slightly slurred speech, and left arm drift. An hour later, plaintiff’s primary care physician arrived and immediately noted the patient’s neurological signs. The physician ordered a neurological consult and admitted patient to the hospital.

After the consult, the neurologist advised the patient’s primary care physician that her opportunity to benefit from alteplase, a tissue plasminogen activator (tPA), had passed. In her complaint, the patient alleged that due to the failure to timely diagnose her stroke, she had suffered increased losses and harm, including permanent injuries. Further, plaintiff asserted had she been timely diagnosed, she could have benefited from tPA. This failure to timely diagnose resulted in plaintiff losing an opportunity to an improved neurological outcome. Namely, plaintiff asserted the administration of tPA would have increased her opportunity of a better outcome, and the untimely diagnosis caused her to lose the opportunity for a better outcome.

This type of claim, known as loss of chance, is recognized in certain jurisdictions and allows a plaintiff to recover for the loss of a more favorable medical outcome. In general, some limitations on recovery may exist, including demonstrating the plaintiff’s loss of the chance of a better outcome was greater than or equal to 50%, had a certain course of treatment been followed. However, the Supreme Court of North Carolina refused to accept this argument, stating that whether a theoretical loss of chance could be claimed in a medical malpractice suit was a question for the legislature to decide.

What this means to you: The loss of chance doctrine can be a strong tool for plaintiffs to recover damages when a physician’s failure to follow a certain course of treatment resulted in the patient losing the opportunity of a better outcome. It is important to consult with qualified legal counsel in the local jurisdiction to ascertain whether it applies, and with what potential nuances.

In general, such claims can increase the damages awarded in a medical malpractice case because not only can the plaintiff recover for the injuries suffered, but he or she also is compensated for a missed opportunity of suffering a less severe injury. However, the main issue reviewed by the court was whether the state of North Carolina would recognize this doctrine and apply it in the present case.

In reviewing the decision of the court of appeals, the Supreme Court of North Carolina first analyzed the effect on stroke patient of administering tPA within three hours of the onset of symptoms. First, the court looked at a medical study the plaintiff’s medical expert relied on during trial. According to the study, stroke patients who were given a placebo in place of tPA had a 20% to 26% chance of a good neurological outcome (i.e., either recovering completely or almost completely). By contrast, patients who received tPA within three hours had a 39% chance of a good neurological outcome. In other words, tPA only changed a stroke patient’s favorable outcome odds by approximately 13%. Further, patients who received the drug also presented a 6.4% chance of experiencing more adverse effects. However, the plaintiff’s expert argued that in the current case, the patient would have had a 35% to 39% chance of a better outcome had tPA been administered.

Next, the court examined the proximate causation standard in medical negligence cases. Based on this standard, a breach is considered to have caused a certain injury if it is likely the injury would not have occurred without the breach. In practice, this translates to a 50% or greater chance the injury would not have occurred without the claimed breach. Based on this standard, the court opined that even if the theory of loss of chance were to be applied, it would only be applicable if the plaintiff could demonstrate the alleged conduct caused a loss of opportunity of at least 50% to obtain a more favorable outcome. Thus, in the present matter, the plaintiff’s expert should have demonstrated that with the administration of tPA within three hours, the patient would have had at least a 50% chance of experiencing a more favorable outcome. However, this was not the case.

Further, the evidence relating to tPA would not have supported such an opinion. The court found that awarding damages for loss of chance in this scenario would violate the general standard of proximate causation, which must remain unaltered for medical malpractice cases. Plaintiff also argued that under a loss of chance theory, the proximate cause standard should be lowered because a 15% or 30% chance of an improved outcome is measurable and represents a compensable injury, which should remain separate from a traditional malpractice claim. The court rejected this argument and held the decision to lower the proximate causation standard was up to the state legislature. Nonetheless, the loss of chance doctrine will remain an important concept to remember when analyzing medical malpractice cases, especially in those jurisdictions where it has been held to apply.

Finally, note tPA only is useful for ischemic strokes. Its efficacy is determined by how quickly the patient can get to a facility that provides it, and the healthcare providers determine it is the appropriate course of treatment. A CT scan is the fastest way to visualize a hemorrhagic stroke — in which tPA is contraindicated — but the CT scan often will not show evidence of an early infarction. The MRI is more diagnostic, but not immediately. This is one reason many hospitals have become stroke centers. They can activate a stroke team, similar to a Code Blue or Rapid Response team. But it is up to the physicians and nurses caring for the patient to carefully and precisely assess the patient’s symptoms for signs of stroke and stroke progression. This includes neurological assessments every 15 minutes. A hemorrhagic stroke is accompanied frequently by extreme headaches as blood leaks into the intracranial space and increases pressure on the brain. An experienced neurologist can review the data and make the appropriate diagnosis. If a neurologist is unavailable, a patient should be transferred to a stroke facility or, at the very least, to a neurology service elsewhere. Time is critical to minimize the damage in either type of stroke.


  • Decided Dec. 18, 2020, Supreme Court of North Carolina, Case No. 241PA19.