262 P.3d 490
Wash.2011Background
- Mohr suffered a hypoglycemic event leading to a car crash and was treated at Kadlec Medical Center; initial CT was normal but subsequent symptoms suggested a stroke; she was discharged with limited instruction and later re-presented with a diagnosed stroke on Sept. 1, 2004; delays and gaps in imaging and treatment (CT angiogram, anticoagulants/antiplatelets) occurred; aspirin was provided late and transfer to Harborview occurred after substantial brain injury had developed; experts testified that earlier nonnegligent care could have yielded a 50–60% chance of a better outcome, reducing disability; the Mohrs asserted a lost-chance medical malpractice claim and sought damages for diminished chance of recovery; the trial court granted summary judgment for defendants, which the Court of Appeals certified for review; the Supreme Court reversed, recognizing a lost-chance claim in the medical malpractice context and remanding for further proceedings.
- Facts germane to issues and decision are included here; procedural posture and causation details are summarized to frame the legal question about the lost-chance doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May there be a lost-chance cause of action in medical malpractice for harms short of death? | Mohrs argue Herskovits extends to permanent disability, creating a compensable lost chance. | Defendants contend RCW 7.70.040 requires actual injury with proximate causation; lost chance otherwise is speculative and unsupported by statute. | Yes; Herskovits applies to nonfatal, serious injuries and lost chance is compensable. |
| Was summary judgment proper under CR 56(c) given claimed lost chance? | Mohrs presented prima facie evidence of duty, breach, injury (lost chance), and causation. | Defendants contend lack of proximate causation and insufficient evidence of lost chance. | No; genuine issues of material fact remain; summary judgment reversed as to all defendants (except as to precise vicarious-liability questions later remanded). |
| Can a hospital be vicariously liable for contractor physicians under apparent authority? | Apparent agency supported by patient-facing representations and hospital practices can bind hospital. | Arguments about agency require factual development; the contract language alone is not dispositive. | Yes; apparent authority can render hospital vicariously liable; summary judgment reversed on that point. |
Key Cases Cited
- Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609 (1983) (recognizes loss of a chance as actionable in survival cases and informs causation theory for lost chance)
- Daugert v. Pappas, 104 Wash.2d 254 (1985) (limits application of lost chance doctrine beyond medical malpractice)
- Shellenbarger v. Brigman, 101 Wash.App. 339 (2000) (recognizes loss of chance framework in medical contexts)
- Matsuyama v. Birnbaum, 452 Mass. 1 (2008) (supports loss of chance with probabilistic damages and proportional recovery)
- Berger v. Sonneland, 144 Wash.2d 91 (2001) (statutory standard-of-care and proximate-cause framework in medical malpractice)
- Adamski v. Tacoma General Hosp., 20 Wash.App. 98 (1978) (apparent agency factors for hospital liability)