Rаlph T. Jones, Jr. (Jones), personal representative of Alice Jones’ (Decedent) estate, claims the trial judge erred in failing to apply the “lоss of chance” doctrine to this medical malpractice case. We disagree and affirm.
FACTS
In October 1987, Ralph Owings (Owings), a licensed physician and specialist in orthopedic surgery, treated Decedent for a fractured left femur. Decedent had a preoperative chest x-ray on October 27, 1987. The radiology report by James P. Ashley, M.D. noted an abnormality in the left upper lung and recommended follow-up x-rays or a CT scan. On October 10, 1988, Dr. Ashlеy performed another preoperative chest x-ray. Dr. Ashley’s report indicated “probable scarring left upper lobe” and a CT scan was recommended. It is alleged that no action was taken by Owings following these reports. In September 1989, Decedent was diagnosed with lung cancer and shе died on June 18,1990 as a result of lung cancer.
Jones, personal representative of Decedent’s estate, brought this action for wrongful death and survivаl alleging that Owings was negligent and willful in failing to inform decedent of Dr. Ashley’s reports, in failing to follow up on Dr. Ashley’s recommendations, and in failing to diagnosis her lung canсer. Owings answered the complaint with a general denial and interposed several affirmative defenses. Thereafter, Owings made a motion for summary judgment on the issue of proximate causation.
Jones presented the deposition of Dr. Martin W. Lee. Dr. Lee stated that at the time of the first x-rays in Octobеr 1987, Decedent’s chance of survival would have been approximately fifty percent. At the time of the second x-ray, Decedent had a twenty to twenty-five percent survival rate. However, when the cancer was diagnosed in September 1989, Descendent had a fifteen to twenty percent chance of survival.
Based upon Dr. Lee’s testimony the trial judge found that if Decedent’s lung cancer had been diagnosed and treated in October 1987 when shе received her first chest x-ray, she would not have had a better than fifty percent chance of survival. The trial judge granted Owings’ motion for summary judgment finding Jones had not met the burden of proof required to show that any breach of duty on Owing’s part proximately caused Decedent’s death. This appeal follоwed.
LAW/ANALYSIS
In South Carolina a medical malpractice plaintiff who relies on expert testimony must introduce evidence that the defendant’s negligence most
probably
resulted in the injuries alleged.
Sherer v. James,
The “loss of chance” doctrine has been the subject of сonsiderable debate amqng courts and commentators.
United States v. Cumberbatch,
647 A. (2d) 1098,1100 (Del. 1994). In the context of medical malpractice, the “loss of chance” doctrinе permits a recovery when the delay in proper diagnosis or treatment of a medical condition results in the patient being deprived of a less that even chance of surviving or recovering.
Kilpatrick v. Bryant,
In rejecting the “loss of chance” doctrine the Ohio Supreme Court held:
Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chаnce of survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustiсe than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the stаndard of probability, we are not persuaded by their logic.
We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant’s negligence, in probability, proximately caused the death.
After a thorоugh review of the “loss of chance” doctrine, we decline to adopt the doctrine and maintain our traditional approach. We arе persuaded that “the loss of chance doctrine is fundamentally at odds with the requisite degree of medical certitude necessary to establish а causal link between the injury of a patient and the tortious conduct of a physician.”
Kilpatrick,
Affirmed.
Notes
The relaxed causation approach permits recovery when the plaintiff establishes a “substantial possibility of causation.”
See McKellips v. Saint Francis Hosp., Inc.,
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s persons or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaldng, if:
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaldng.
See Hamil v. Bashline,
The proportional approach compensates the lost chance of survival, rather than the death itself. Under this approach the victim is entitled to a proportion of the total amount of death-related damages reflecting the reduction of the victim’s chance of survival. Cumberbatch, 647 A. (2d) at 1100-101.
Professor Joseph King developed this approach in his article, Causation, Valuation, and Chance in Personal Injury ToHs Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981). King's thesis is that
the loss of a chance of achieving a favorable outcome or of avoiding an adverse consequenсe should be compensable and should be valued appropriately, rather than treated as an all-or-nothing proposition. Preexisting conditions must, of course, be taken into account in valuing the interest destroyed. When those preexisting conditions have not absolutely preordained an adverse outcome, however, the chance of avoiding it should be appropriately compensated even if that chance is not better than even.
Id. at 1354.
Several courts have adopted this approach.
See e.g. DeBurkarte v. Louvar,
A substantial number of other jurisdictions have also rejected the loss of chance doctrine.
See e.g. Grody v. Tulin,