Warning! ‘Loss of chance’ theory becoming a growing threat in malpractice

Courts taking more lenient approach to when this argument can be used

“Loss of chance,” which is arguing what might have been if medical treatment or diagnosis had taken place earlier or been properly carried out, has been an available legal tactic for plaintiffs for decades; however, it was a relatively dormant legal theory in past years because courts limited how and when it could be used. Now it is becoming popular with plaintiff’s attorneys again, and some defense attorneys say it is even more threatening now.

Loss of chance is appearing more because courts and state legislatures are allowing the argument when the chance of survival was less than 50%, explains Jacqueline M. Carolan, JD, partner with the law firm of Fox Rothschild in Philadelphia. Previously, loss of chance usually required there be at least a 50% chance of survival. In recent years, Massachusetts, Michigan, Wyoming, and Delaware have allowed damages below the 50% threshold.

“Some states are showing more leeway, and some that never recognized loss of chance are saying maybe they should start eroding that prohibition and let it in,” Carolan says.

The tactic might be known by other names; in Pennsylvania it is known as “increased risk of harm.” The argument is used most often in cancer cases, but it also is used also in cases of stroke and similar problems in which prompt treatment can make a significant difference in outcome. In 2008, the Massachusetts Supreme Judicial Court affirmed a jury ruling in Matsuyama v. Birnbaum by saying that even though the patient had only a 37.5% chance of survival if the defendant doctor had properly diagnosed his stomach cancer during a physical, loss of chance could be used to award the plaintiff that percentage of the $875,000 the jury determined was due for wrongful death. The plaintiff received $328,125 for wrongful death and another $160,000 for pain and suffering.

In its ruling, the Massachusetts Supreme Judicial Court said that the state should join “the substantial and growing majority of states” that have found the 50% threshold too limiting.

The use of loss of chance will differ from state to state, explains Karl J. Protil Jr., JD, equity shareholder with the law firm of Shulman Rogers Gandal Pordy Ecker in Potomac, MD. Protil recently represented the plaintiff in a Virginia case in which a woman’s CT scan was misinterpreted and her cancer diagnosis delayed, which lawyers said caused her to die two years earlier than she might have. Virginia requires a “substantial” loss of chance, which is not defined.

“This is all determined by the law of the state, and some do not recognize loss of chance at all, but the majority of them do,” Protil says. “States have said that when the patient loses some opportunity for a better outcome, that has some value and you are able to recover for that.”

Risk managers should educate clinicians on the increased threat from loss of chance, Carolan suggests. Counsel them to avoid giving patients false hope with comments such as, “It’s going to be OK,” which is a phrase Carolan hears patients repeating in depositions all the time.

“They don’t have to be Debbie Downers all the time, but they do need to give a balanced approach, and that means the good and the bad,” she says. “Sometimes there is an expectation that everything is going to be solved in healthcare, and sometimes unfortunately it can’t be.”

In states that allow loss of chance, and particularly those with more lenient interpretations, defendant hospitals might see more cases taken to a jury, says Buckner Wellford, JD, shareholder with the law firm of Baker Donelson Bearman Caldwell & Berkowitz in Memphis, TN. Many malpractice claims are successfully defended on the causation claim, he notes. “If that causation requirement is relaxed, then you have significantly increased the number of claims that will not get knocked out by a judge but will instead go to a jury,” Wellford says. “That definitely changes your settlement posture because the case can come down to how a jury feels rather than the medical science showing causation or not.”

Without loss of chance, Wellford says, the defendant usually can get a good feel for whether the plaintiff would be able to prove that the injury, more likely than not, changed the outcome. (See the story below for more on defending a loss of chance claim.)

“When the burden changes from ‘more likely than not’ to something looser under loss of chance, you are at a disadvantage in determining how to resolve the case,” Wellford says. “With loss of chance, the judge may look at evidence that would have been nowhere near enough to get the plaintiff over that hump for causation, but he may send it to the jury and let them figure out how much it is worth.”

Sources

Jacqueline M. Carolan, JD, Partner, Fox Rothschild, Philadelphia. Telephone: (215) 299-2863. Email: jcarolan@foxrothschild.com.

Karl J. Protil Jr., JD, Equity Shareholder, Shulman Rogers Gandal Pordy Ecker, Potomac, MD. Telephone: (301) 230-6571. Email: kprotil@shulmanrogers.com.

Buckner Wellford, JD, Shareholder, Baker Donelson Bearman Caldwell & Berkowitz, Memphis, TN. Telephone: (901) 577-2152. Email: bwellford@bakerdonelson.com.