Lost Chances to Recover: An Elaboration

By Alex Stein

An important development of the lost-chance doctrine recently took place in Rash v. Providence Health & Services, — P.3d —- (Wash.App.Div.3 2014).

An 82-year old patient with a critical heart condition was hospitalized to undergo surgery. The patient’s heart condition made her death inevitable, but she managed to prolong her life with the help of medications. The hospital negligently failed to give the patient blood pressure medications. As a result, the patient suffered a series of strokes from which she died. The hospital’s negligence thus accelerated the patient’s demise.

The patient’s heirs sued the hospital for medical malpractice. The patient’s preexisting condition doomed the plaintiffs’ claim that the hospital’s negligence was the but-for cause of her death. The plaintiffs consequently demanded compensation for the lost chance of  better outcome, pursuant to Herskovits v. Grp. Health Coop. of Puget Sound, 664 P.2d 474 (Wash. 1983); and Mohr, 262 P.3d 490 (Wash. 2011).

The plaintiffs’ expert, however, could not estimate the lost chance, nor was he able to demonstrate that the neglected medications were more likely than not to prolong the patient’s life. All he was able to stand by was the estimation that the hospital’s failure to give the patient those medications was a “substantial factor” in accelerating her death.

Washington’s appellate court held that the plaintiffs’ suit was doomed to dismissal. The court justified that decision by the insufficiency of the plaintiffs’ “substantial factor” evidence and by the expert’s failure to quantify the lost chance.

The court’s first reason is absolutely correct. The “relaxed causation” doctrine that applies in Washington and many other states (see here at 1216-26) allows an aggrieved patient to establish causation by showing that her doctor’s malpractice was a “substantial factor” in the infliction of her injury. In the case at bar, the plaintiffs have failed to make this showing since the patient’s preexisting condition was the dominant cause of her death. An aggrieved patient becomes entitled to compensation also when he proves that the doctor’s malpractice had reduced her chance of recovery or better outcome. This cause of action, however, requires that the patient prove her lost chance by a preponderance of the evidence. The patient cannot combine the “substantial factor” rule with the lost chance doctrine to further reduce her burden of proof.

The court’s second reason, however, is not as convincing as the first. When a patient proves by a preponderance of the evidence that the doctor’s negligence had reduced her recovery or better-outcome prospect, absence of evidence quantifying the lost chance should not prevent the patient from recovering compensation. The patient’s evidential predicament would then be attributable to the doctor’s fault, which should make the patient entitled to every reasonable assumption in her favor in the court’s assessment of her lost chance. See here; and see more generally Ariel Porat & Alex Stein, Tort Liability Under Uncertainty (2001). Under the total absence of information, the patient’s lost chance would then be properly assessed at 50%.

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