Opinion
C.A. No. 98C-12-075-JEB.
Submitted: April 28, 2003.
Decided: May 27, 2003.
Defendant St. Francis Hospital's Motion for Summary Judgment.
Motion Granted.
Appearances: Michael D. Becker, Esquire, Wilmington, Delaware, attorney for the Plaintiffs. Mason E. Turner, Esquire, Wilmington, Delaware, attorney for Defendant Howard Wilk, M.D.
Christian Singewald, Esquire, Wilmington, Delaware, attorney for Defendant St. Francis Hospital, Inc.
OPINION
This is the Court's decision on Defendant St. Francis Hospital's motion for summary judgment on Plaintiffs' claim for loss of chance of survival. For the reasons stated below, Defendant's motion is granted.
FACTS
On January 7, 1997, Joseph Parker underwent a ventral hernia repair performed by Defendant Howard Wilk, M.D., at St. Francis Hospital. Mr. Parker went home the same day. Several days later, he was readmitted because of abdominal distention and vomiting. On January 12, 1997, Dr. Wilk performed an exploratory laparotomy. Mr. Parker was found in his bed not breathing and without a pulse on January 17, 1997. After unsuccessful resuscitation attempts, he was pronounced dead. The autopsy report stated that the cause of death was a massive bilateral pulmonary thromboembolism, with obesity and cardiomegaly as contributing conditions.
Plaintiffs filed a timely complaint raising a wrongful death claim and a survival claim based on the negligence of both Defendants during Mr. Parker's readmission to the Hospital. On April 16, 2002, this Court granted St. Francis' motion for summary judgment as to the wrongful death claim based on the lack of evidence that any negligent act was the proximate cause of death. The Court denied summary judgment on the survival claim based on the loss of chance doctrine. St. Francis has renewed its motion on this issue, arguing that Plaintiffs cannot establish a prima facie case because they have no evidence of loss of chance damages.
Parker v. Wilk, 2002 WL 555063 (Del.Super.).
STANDARD OF REVIEW
On a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Summary judgment may be granted only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Billops v. Magness Const. Co., 391 A.2d 196, 197 (Del. 1978).
Dale v. Town of Elsmere, 702 A.2d 1219, 1221 (Del. 1997).
DISCUSSION
Defendant argues that Plaintiffs must show statistical evidence of Mr. Parker's lost chance of survival and that, based on the medical expert's deposition, Plaintiffs cannot provide such evidence. Without this evidence, Defendant argues that it is impossible to show damages and that Plaintiffs therefore cannot make a prima facie showing of loss of chance. Plaintiffs agree that damages should be proportional to Mr. Parker's loss of chance but assert that statistics are not required to make this determination.
Dr. Lloyd Bergner, M.D., testified at his deposition that if hospital staff had acted differently, Mr. Parker's chances of survival would have been better than they actually were. In so testifying, Dr. Bergner identified the following acts or omissions: the nurses' failure to place Mr. Parker properly in a chair, which could have contributed to the development of the deep thrombosis; the nurses' failure to contact a physician about transferring Mr. Parker to the ICU; the nurses' failure to comprehend the significance of Mr. Parker's abnormal oxygen saturation level, respiration, pulse and other vital signs; the nurses' continued administration of sedatives prescribed by Dr. Wilk, which may have masked Mr. Parker's symptoms; the nurses' failure to contact a physician to reinsert the nasogastric tube when Mr. Parker started vomiting; and the house physician's failure to perform an immediate intubation to establish an airway after discovering that Mr. Parker had a massive pulmonary embolism.
However, Dr. Bergner was not able to state the percent to which any of this conduct contributed to Mr. Parker's reduced chance of survival.
The questions before the Court are whether a cause of action for loss of chance is viable in Delaware and, if so, what is the appropriate standard for determining damages.
In its simplest terms, the loss of chance doctrine means that a doctor or other health care provider, by doing something wrong, has decreased the patient's chance of recovery or survival. The public policy in favor of this doctrine is that without it, health care providers would be free of liability even for gross negligence in the care of critically ill patients who have less than a fifty-fifty chance of surviving without proper treatment. Stated otherwise, the loss of chance principle allows compensation to a plaintiff for the tortious deprivation of an opportunity to live longer or to recover from an injury even if the defendant's negligence did not cause the death or other underlying injury.
Jorgenson v Vener, 616 N.W.2d 366, 368 (S.D. 2000). The loss of chance doctrine was recognized in Hicks v. United States, in which the court stated that "[w]hen a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable." 368 F.2d 626, 632 (4th Cir. 1966). The doctrine received widespread attention in medical malpractice cases following publication of an article by Professor Joseph King. See Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981).
United States v. Cumberbatch, 647 A.2d 1098, 1102 (Del. 1994); Delaney v. Cade, 873 P.2d 175, 180 (Kan. 1994).
Delaney v. Cade at 182. The doctrine encompasses both a loss of chance for survival and loss of chance for a better recovery. While several jurisdictions have chosen not to recognize either cause of action, no jurisdiction that has recognized one has refused to recognize the other.
Delaware case law suggests that the cause of action is viable. In United States v. Cumberbatch, the Delaware Supreme Court held that a loss of chance action is not viable under the wrongful death statute but intimated that it may be available at common law. In United States v. Anderson, the Court held that increased risk of harm accompanied by physical injury is a compensable element of damages under Delaware law, even where the future harm is not probable. In dicta, the Anderson Court observed that it would not be logical to adopt increased risk without also adopting loss of chance. That is, allowing a cause of action before the unfavorable result occurs implies that one exists after it does occur. However, the Anderson Court did not address whether loss of chance is a discrete cause of action.
United States v. Cumberbatch, 647 A.2d at 1103.
669 A.2d 73, 75 (Del. 1995).
Id. at 75-76.
More recently, in Edwards v. Family Practice Assoc., Inc., this Court held that the loss of chance of survival is a proper cause of action under Delaware common law. The case went to the jury based on medical testimony that if the plaintiff had Id. timely received the proper diagnosis and treatment his general health would have been better, his post-surgery recuperation would have been easier, and he would have been spared extensive surgical procedures. The Edwards decision states that the expert testimony provided a "competent evidentiary basis" for plaintiff's claim for damages for loss of chance. However, the Court finds that the observations made by both Cumberbatch and Anderson indicate that the determination of damages requires more than a general statement that a defendant's health or recuperation would have better but for the alleged negligence. The Court also finds that consideration should be given to Cumberbatch's concern that the doctrine might impact Delaware's traditional concept of proximate cause.
798 A.2d 1059, 1064 (Del.Super.Ct. 2002).
Id.
In a minority of jurisdictions, courts have rejected the loss of chance doctrine based on the belief that it would require an alteration to the traditional standard of proximate cause. That is, under the loss of chance theory a plaintiff may recover even if he cannot show that there was a better than even chance of avoiding the underlying injury, if he can show instead that the defendant's negligence diminished the chance of survival or better recovery. To avoid the harsh results of not recognizing the doctrine at all, some courts have adopted a relaxed standard of causation, but the Cumberbatch Court indicated an unwillingness to abrogate Delaware's traditional standard of proximate cause.
Jorgenson v. Vener, 616 N.W.2d at 368.
See, e.g., Delaney v. Cade, 873 P.2d at 215.
United States v. Cumberbatch, 647 A.2d at 1103-04.
Many states have recognized loss of chance as a distinct cause of action rather than as an element of damages in a wrongful death action. This approach focuses proof on the lost chance itself rather than the underlying death or injury, thus preserving the traditional standard of causation. Using this approach, a plaintiff must prove by a preponderance of the evidence that the defendant's negligence reduced his chance of either survival or a better recovery. Although Cumberbatch noted that the legislature might be best situated to fashion this remedy, nothing in Delaware law prevents recognition of loss of chance as a viable cause of action at common law. The Court concludes that a plaintiff may raise loss of chance as a discrete cause of action in a medical malpractice case in Delaware.
See United States v. Anderson, 669 A.2d at 76-77; Jorgenson v. Vener, 616 N.W.2d at 371.
Cumberbatch noted that if the correct approach is applied to the loss of chance doctrine traditional causation principles probably would not change. 647 A.2d at 1103-04. The Court also stated that a legislative solution is appropriate. Id. at 1104.
To make a case for loss of chance, a plaintiff must show damages by establishing the value of the lost chance. Some courts let the jury assign a value to the lost chance based on generalized medical testimony. This method, referred to as the valuation approach, leaves the factfinder "without instruction or guidance in ascertaining the appropriate damage figure. . . . Although this method is the simplest because the introduction of statistical evidence is unnecessary, the goal of reaching some degree of precision in determining the loss allocation is lacking." The Court rejects the notion that simply letting the jury apply its experience and common sense to the evidence is an appropriate method of establishing the value of the lost chance because the evaluation of loss of chance is not a matter of common human experience.
United States v. Cumberbatch, 647 A.2d at 1102; Jorgenson at 371-72 (noting that this method protects defendant from liability greater than the extent to which he contributed to the harm).
James v. United States, 483 F. Supp. 581 (N.D.Cal. 1980).
Delaney v. Cade, 873 P.2d at 187.
Most courts that recognize loss of chance have adopted the proportional damage approach, which values the loss as the percent of chance lost multiplied by the total value of a complete recovery. Cumberbatch indicated approval of this approach. Like any medical malpractice action, this approach requires expert medical testimony to ascertain the appropriate amount of damages.
Jorgenson at 372; McKellips v. St. Francis Hospital, Inc., 741 P.2d 476, 476-77 (Okla. 1987); DeBurkarte, 393 N.W.2d at 137; Roberts, 668 N.E.2d at 484; Delaney 873 P.2d at 187. This is the approach recommended by King at 1382.
United States v. Cumberbatch, 647 A.2d at 1103.
More specifically, the proportional approach to damages requires that the medical evidence be presented in terms of percentages. This approach, which includes possibilities as well as probabilities, has been illustrated as follows:
Once causation has been established, the value of the injury, whether a possibility (less than 50%) or a probability (greater than 50%) is compensable. Assuming, for example, that a patient had a 40% chance of recovery under optimal conditions, and the physician's negligence destroyed that chance, the value of the lost chance would be 40% of the total value of a complete recovery. Similarly, if the patient's chance at recovery was 60% and the physician's negligence eliminated that chance, the value of the lost chance would be 60% of the value of a complete recovery. Or, if instead of completely eliminating the chance of recovery, the physician's negligence merely reduced the chance of recovery from 40% to 20%, then the value of the lost chance would be 20% of the value of a complete recovery.
Jorgenson v. Vener, 616 N.W.2d at 372 n. 8.
Jorgenson v. Vener, 616 N.W.2d at 372 n. 8.
Using these examples, affixing appropriate damages is a simple task. The difficulty is obtaining reliable medical evidence that is expressed in percentages. In the case at bar, Dr. Bergner confidently described what he saw as negligent conduct and as deviations from the applicable standard of care. He also stated that his opinions were based on 48 years of experience as a surgeon. Nevertheless, he repeatedly said that he could not quantify Mr. Parker's lost chance in percentages. The Court concludes that Plaintiffs cannot show the percent to which Mr. Parker's chance to survive was reduced. Without this variable, the whole equation falls apart.
Other courts have concluded that a plaintiff must show that the lost chance to survive was substantial. Again, Plaintiffs' expert could not make this statement. He was able to say only that Mr. Parker's chance to survive would have been better but for the alleged negligence. With this type of generalized evidence, the Court need not decide the preferred method for establishing the value of the lost chance because Plaintiffs cannot show either a percent of lost chance or a substantially reduced chance. Viewing the evidence in the light most favorable to Plaintiffs, the Court concludes that Plaintiffs cannot make a prima facie showing of damages.
CONCLUSION
For these reasons, St. Francis Hospital's motion for summary judgment is Granted.
It Is So Ordered.