*1
David JORGENSON and Laura
Jorgenson, Plaintiffs and
Appellants, M.D., VENER,
Michael Defendant J. Appellee,
No. 21139.
Supreme Court Dakota. of South
Argued March July
Decided Offices,
Daniel R. Fritz Fritz Law Aber- deen, South Dakota and R. James Welsh Bradford, Welsh, Omaha, Coenen & Ne- braska, Attorneys plaintiffs appel- lants.
Reed Rasmussen Siegel, Barnett & Schütz, Aberdeen, Dakota, South' Attor- neys for appellee. defendant and MILLER, Chief Justice In this medical malpractice case we reverse the trial court and hold that recognized “loss of chance” doctrine common law this state. FACTS August [¶ 2.] On visiting while Wisconsin, at a relative’s home in David Jorgenson jumped from a deck below, house to a cement sidewalk dis- tance of approximately feet. seven impact right leg shattered his lower nearby ankle. He was taken hospital, to a where a pins doctor inserted into leg injury ankle and stabilized the with a device called an external Jorgen- fixator. son discharged from the Wisconsin hospital days five later. Upon returning to his home in Dakota,
Waubay, Jorgenson South contin- ued treatment his Dr. Mi- *2 ensued, Watertown, discovery had Dr. physician [¶ 8.] a After chael Vener summary surgery. judg- in Dr. Vener filed a motion orthopedic specializing trial drainage granted ment. The court motion. Vener, noticing after some Jorgenson appeals. leg, pins Jorgenson’s placed in around the weeklong course of antibiotics. him aon after acci- one month
Approximately OF STANDARD REVIEW dent, re-aligned the Dr. Vener external grant- Our review of a trial court’s [¶ 9.] time, open an sore of At that fixator. ing summary judgment is well settled. noted approximately was 1/2” reviewing “In a grant a denial of leg. Jorgenson’s right lower shin judgment under summary SDCL 15-6- October, began Jorgenson In late [¶4.] 56(c), must we determine whether the drainage feverish. He also noticed feeling moving demonstrated absence party coming foul-smelling odor a any fact and genuine issue material prescribed Dr. leg. on his blister Vener judgment showed entitlement to on the of antibiotics for him. another course merits as a matter of law. The evidence favorably must be viewed most to the 1997, 10, Vener On November Dr. [¶ 5.] nonmoving party and reasonable doubts Approxi- the external fixator. removed against moving should be resolved later, again mately Jorgenson two weeks however, party. nonmoving party, a odor foul-smelling drainage noticed specific present showing facts However, this open from the sore. coming genuine, material issue for trial exists. at could the sur- time he also see a bone appeal task on is determine Our Jorgenson immediately face the wound. genuine issue material fact whether Vener, Dr. an- prescribed contacted who correctly the law exists and whether topical course of oral and antibiotics. other there which applied. exists basis addition, with a doctor appointment In an court, trial supports ruling Fargo in was scheduled to assess whether summary judgment of a is affirmance done, in procedure flap” a “free should proper.” Vener, of Dr. “in order to sal- the words Falls, City 1999 SD Millard v. Sioux vage the limb.” ¶ 8, (quoting Walther 589 N.W.2d never to the doc- Jorgenson [¶ went 6.] Partnership, KPKA Ltd. Meadowlands Instead, ap- made Fargo. tor in he an ¶ SD Rochester, Mayo Clinic in pointment omitted)). (citations Minnesota, on 4th. Jor- December There options he had con- genson was told two DECISION leg: attempt treatment of the cerning which would encom- graft, bone and skin The loss of chance doctrine is recognized 60% pass years two of treatment with a in Dakota. South success, amputa- or immediate reviewing and con- After briefs [¶ 11.] latter. De- Jorgenson tion. chose the On hearing, granted trial ducting court 9, 1997, he underwent below-the- cember summary judgment, motion for Vener’s amputation right leg. knee of his of chance that “the loss doc- concluding compatible Dakota Jorgenson and his wife subse- trine not South Jorgenson this decision was malpractice ac- law.” asserts quently filed this medical incorrect, recog- Dakota tion, contending South claiming diagnose Dr. Vener failed to that it of chance doctrine and also nizes infection the bone and chronic by harm inflicted encompasses type to refer him to infectious disease failed contrast, Vener ar- negligence. Dr. According Jorgenson, Vener’s specialist. recognized not doctrine is that the negligence gues caused a “loss of Vener’s Dakota, we not low- and that leg. him South chance” for to save his er our causation standard supporting traditional the doctrine have been prof- adopting alternately it. Vener asserts fered courts and commentators. See even if Keith, chance doctrine is supra, 770-80; Mangan, supra, state, adopted Jorgenson (and did therein). at 292-98 Op- sources cited present sufficient evidence to establish ponents generally that it contend alters *3 causation under the lower standard. We or requirement proximate eliminates the of opportunity have not had the to determine Gooding University causation. Hosp. v. of whether the loss chance doctrine is rec- Inc., (Fla. 1015, Building, 445 So.2d 1019 ognized at common law in this state.1 1984); Falcon v. Hosp., Memorial 436 443, (1990) 44, 462 Mich. N.W.2d 65 (Riley,
[¶ 12.] The loss of
in-
chance doctrine
C.J.,
doctor,
dissenting).4 They also assert
by
volves the
that a
doing
idea
of chance
wrong,
loss
relies on
something
speculative
has
statisti-
pa-
decreased the
cal
in
tient’s
of
evidence
order to show how
chance
or survival.
much
Margaret Mangan, Comment,
by
T.
chance was lost
physician’s
The Loss
actions.
v.
Ctr.,
Chance
A
Southern
Pay
Maryland Hosp.
Doctrine:
Small Price to
Fennell
Inc.,
279,
776,
42
Life,
Human
S.D.L.Rev.
283
320 Md.
A.2d
580
213-14
for
(1997).2
(1990).
arguments opposing
Further,
Various
they argue
places
that it
Bail,
parties
Limpert
it,
1. The
cite
v.
447 N.W.2d
destroyed
vival and the defendant has
he
(S.D.1989),
Moon, Inc.,
48
Steckman v. Silver
is answerable.
(1958),
77 S.D.
gan, supra, they argue can more than Finally, less attribute small, probability is a to the defen recovery, legally no matter how 50% causation (a fails his bur negligence, dant’s he to meet patient’s interest health is cognizable if a valuable, can proof. even the chance of recov- den though approximately Mangan Keith identified Cooperhas since been overruled the Ohio accepted the loss that have nineteen states Supreme Court in v. Ohio Permanente Roberts Mangan, supra, at 290 See chance doctrine. Inc., Group, St.3d Med. 76 Ohio 117; Keith, supra, at Notable n. 770 n. 64. (1996). recognizes the N.E.2d 480 Ohio now among adopting doc- jurisdictions those of chance doctrine. Louvar, Iowa, trine in DeBurkarte v. 1986). (Iowa N.W.2d 131 defen- in all show a less chance fact that is even 49% cases death injury, his he is fore- Only dant’s actions caused more certain than taxes. the time if recovery. Conversely, he closed of all and cause of death be in doubt. can 51% chance that the show a or better that, supports evidence a finding more injuries, caused his he can re- not, probably negligence hastened injuries. cover the value such 100% death, ordinarily a death wrongful action perceptions Because of the all-or- lie, also, lies. Should an action when stan- nothing approach of the traditional that, supports finding evidence more unduly dard of causation was not, probably than negligence reduced harsh, the loss chance doctrine evolved.7 patient’s chance of Ex- survival? adopt
[¶ 15.] Courts that pressed way, question another is: recognize a lost doctrine effect should we reduction the patient’s view action, distinct cause of treat as a event, chance of survival as the relevant ing it compensable injury, as the not the and allow probably more DeBurkarte, underlying itself. than not negligence was a cause of that Herskovits, 137; N.W.2d at 664 P.2d at event? (Pearson, J., concurring); Page W. (5th al., supra, § et Keeton at 272 al., Keeton et Prosser and Keeton on the Ed.1984) (footnotes omitted). Concomi *5 (5th § Law Torts Ed.Supp. of with recognizing tant the lost chance as an 1988). following excerpt provides The a redress, worthy interest of the doctrine concise illustration of the loss of chance bifurcates the tort of elements causation concept: King, and valuation. supra, See that [SJuppose trial evidence offered at (stating already that “[a]s has been decedent, plaintiffs tends to show that argued, analyt causation valuation are cancer, having contracted a form of ically concepts. different The causation a chance of 40% cure and that defendant inquiry determines whether a defendant physician’s negligent failure to a make required should be a compensate plain diagnosis correct on first visit reduced tiff for a inquiry loss. The valuation de the of chance cure to 25%. a such termines how compensation much is re case, if we view plaintiffs the “death” of quired,” and “[t]his distinction seems to decedent, cancer,” or even “death from courts, eluded have the result the that event, as the plaintiffs relevant evidence many chances in respects lost are compen falls supporting finding short of a fact all.”) sated either as certainties or not at was, negligence the more probably (emphasis in original). not, than a but-for of cause that event. not, action, More As a probably than it would have distinct cause of happened a anyway because of loss of chance must still be proven the cancer. under ground is, One of the traditional proof. criticism this outcome standard of That is that it does adequate not take prove account still aby prepon- must proffered by King: As Atlempts problem posed Professor to deal with the adoption of all-or-nothing ap- tinkering The destruction a of the chance proach to the a proof loss of chance has with the standard of can further enhancing importance obvious effect of of assignment. confuse matters loss If the proof, of the standard which determines rationalized, question on law this is to be a degree party certainty with which the proof vehicle other than the standard of will proof satisfy with the burden appropriate have to be used. The vehicle is prevail. Perhaps burden in order to ways of the reevaluation traditional reason, when results under the all-or- thinking about the interest for which relief nothing courts, appeared rule have too harsh sought valuing is and the role of chance generally attention has focused that interest. appropriate the standard of as the King, (footnote supra, at omit doctrine for reformulation. ted). of chance is an defendant’s to conclude that derance evidence of a his chance state. operated Adoption to reduce actionable our conduct causation outcome. Once more favorable doctrine properly the loss standard, a the traditional proven is under of a competing pa- balances concerns of the on the loss placed value must be treatment, negligent tient who receives valuation, the purposes chance. For those of doctor who against practices recognizes doctrine loss of chance inherently in the inexact science of medi- proba- as well as compensates possibilities the loss Properly applied, cine. from Pro- following bilities. Consider does not alter or eliminate the re- doctrine King: fessor proximate Rath- causation. quirement all-or-nothing approach Rejection of the er, prove by pre- must still of a does not valuing evidence, likely ponderance more validity continuing necessarily affect not, that the defendant’s actions re- causa- all-or-nothing rule for the of the a better duced her chance of outcome. aof inquiry. while the loss tion key application to a successful of this avoiding chance of not-better-than-even recognizing valuing is doctrine a com- result should be some adverse compensable injury, chance as lost loss, it still must be established pensable underlying injury itself. Further- that the caused the destruc- more, although on sta- the doctrine relies all-or-nothing tion of chance. The evidence in order to a value assign tistical ordinarily operate principle would still chance, use of to the lost such mathemati- inquiry if it were the causation even already necessary calculations under cal valuing purposes for the abandoned traditional of causation and standards lost chance. out, King As points valuation. Professor illustrate, To assume that *6 “How else ... we even whether do know suffering cancer is killed because from talking a better-than-even we are about fails surgical due to errors instrument all-or-nothing the applying chance when manufacturing process. Assume the King, supra, rule?” at patient the that the would chance Un- only cured cancer was 30%. of reject Nor we the doctrine 18.] should [¶ arti- proposed the in this approach der ostensibly places medical simply because it cle, would be the loss of that chance plane on of malpractice a different compensable. appear But if it did not types malpractice. compared to other not that the defendant likely more has thus far The fact the doctrine instrument, the was manufacturer the malpractice con- a medical applied been ordinarily be denied the would from avail- in all likelihood derives the text words, that loss. In other probabilities in the ability of statistical a not-better-than-even science; medical such information field of caused of the that the widely in other malpractice not available is If, chance of a cure would not suffice. supra, at 1386 n. King, contexts. See however, the plaintiff proved that the probably the source defendant was profession’s medical Finally, the the product and thus the cause of as malpractice litigation fears of increased loss, the val- plaintiff might recover are unfounded. a result this doctrine all-or-nothing ue the loss. will denigrate not Adopting cau- applied to be idea continue care, Dakota medical rural South it sation even if is abandoned bleakly current forecasts. Our dissent valuation. purposes of regime malpractice expects medical (footnote omitted). supra, 1394-95 King, at urban, is un- rural or who any physician, ability patient’s to treat a about his certain review of the cases [¶ A17.] patient to another us will subject condition refer commentary persuades on (1985); Roberts, experienced. 484; more or who is skilled N.E.2d this, patient doctor fails to do and the loses McKellips, 476.8 P.2d at recovery, then he should be Here, 21.] the record contains an [¶ malpractice. for medical Whether liable affidavit from Dr. Mark E. an infec Rupp, medical care is administered in rural or Omaha, specialist tious from disease Ne among setting, technology urban the latest reviewing Jorgenson’s braska. After med instruments, or with the most primitive deposition ical records of another right expect still has the com- case, expert in Rupp medical testified: petence in physician’s his care. As has upon That based your Affiant’s review of past been with medical situa- malpractice your these documents and Affiant’s edu tions, judgment an error in will not create cation, training experience as an See liability. Mangan, supra, at 325. The your infectious is physician, disease it is physi- loss of chance doctrine tied to the opinion Affiant’s within reasonable de negligence, cian’s not the location his gree certainty of medical probability, office or whether it is chock-full technol- timely because infection was not ogy. Importantly, prevents the doctrine treated, diagnosed Jorgenson Mr. physician concealing negligent his ac- lost a chance prevent subsequent tions in cases where likelihood of re- amputation right outcome of his lower was covery initially less than 50% even extremity. conditions; optimal under a doctor should escape not impunity be allowed to [¶ Vener’s summary 22.] motion for negligent his acts lowered the chances judgment supported by transcripts even further. depositions from two other medical ex- perts. expert initially One testified that A crucial aspect recog he express opinion could about nizing a compensable lost chance as referral whether a to an infectious disease physician idea that a should be specialist early process in the treatment subject to liability only to the extent that would have saved Jorgenson’s leg. Later Therefore, he contributed to the harm. cross-examination, he stated that had damages the amount of recoverable under earlier, infection been he treated be- such an action be equal to the lieved there would have been a better percent of chance lost multiplied *7 chance at saving the He leg. then clarified total complete recovery. value of a seemingly these inconsistent statements Inc., v. McKellips Hosp., Saint Francis by testifying that Jorgenson had un- been (Okla.1987). 741 P.2d 476-77 This der charge, his changed he would have the approach valuing prof lost chance was regimen, treatment might but that still article, by King fered Professor in his have Jorgenson’s leg. saved supra, at adopted and has been by a jurisdictions. of other number [¶ See DeBur Dr. expert 23.] Vener’s other medical karte, 137; Aasheim v. in testified that his a opinion referral to an Humberger, 215 Mont. P.2d infectious disease expert would not have patient's 8. The task under the loss of chance lost chance would be 40% of the total value of adopted doctrine as now complete in South a recovery. Similarly, pa- Dakota the if prove physician’s would be to first that recovery the tient’s chance at was and the 60% by conduct caused the loss physician's of the chance a negligence that eliminated chance, preponderance of the evidence. Once causa- value the of the lost chance would be established, Or, tion been has the complete recovery. value of the value 60% the of a (less 50%) injury, possibility whether a than completely eliminating instead the 50%), probability (greater or a recovery, is com- physician's negligence chance of pensable. Assuming, example, for pa- merely that a recovery reduced the chance of from 20%, tient recovery chance of under 40% 40% to then the value of the lost conditions, optimal physician's negli- and the complete would be of the value of 20% chance, gence destroyed that recovery. the value of the rely life-saving that was whom it must leg, and there health Jorgenson’s saved by Dr. care. in the standard care no breach in the record was
Vener. Included Id. at 160. book, excerpt a medical reference Supreme again [¶ 30.] The Kansas Court injuries that such generally which stated Delaney addressed this doctrine Ac- difficult treat. Jorgenson’s were (1994) Cade, Kan. P.2d book, the ultimate cording to the reference deciding whether or not this doctrine such percentage in a certain outcome recovery. to lost apply amputation. cases was The that and court held it did stated: Reviewing light in a the evidence [¶ 24.] variety Although approaches has genuine to Jorgenson, most favorable jurisdictions emerged among which have Ven- issue of material fact exists whether theory, examined the of chance the loss of a chance negligence er’s caused general approaches three are utilized leg. expert save the One testified theory courts confronted with the and save Vener a loss of the chance to caused (1) adopted: standard to be leg, exactly Jorgenson’s another testified (2) nothing approach; the all or re- and a third was ambivalent. opposite, proof approach; laxed standard of properly disputes These fact cannot be (3) approach. loss of chance must disposed summary judgment via by the factfinder. sum- be resolved nothing all or tradi- approach, or tri- mary improper, and the judgment was tional fol- approach, approach al must be reversed. court’s decision by jurisdictions lowed which refuse as a recognize the “lost chance” distinct' and remanded.
[¶ 25.] Reversed jurisdic- compensable These injury. tions, probably are now the mi- which GILBERTSON, [¶26.] SABERS nority, strictly principle adhere to Justices, concur. prove Justice, AMUNDSON, concurs negligence proxi- defendant’s specially. injury or death mate cause of suf- such, plaintiff. As fered KONENKAMP, Justice, dissents. that there exist- plaintiff must establish AMUNDSON, (concurring spe- Justice avoiding ed better-than-even chance cially). resulting physical injury or death. agree majority I with the [¶29.] burden, meets this com- doctrine for rea- adopting the lost chance particular awarded pensation is expressed by Supreme the Kansas sons as suffered, not wrongful death Counselman, 235 in Roberson v. Court the lost chance better *8 (1984). Kan. 149 In Rober- 686 P.2d Thus, jurisdictions re- these survival. son, by not allow- the court concluded to the view of fuse relax traditional forward, go to ing plaintiffs the case malpractice in cause proximate medical Roberson, in essence, pointed in on criti- actions. As out open declares season in argument this is best illustrated Coo- injured persons pro- care cally ill or 27 Ohio per Charity, St.2d liability would be free of for even Sisters viders (1971). As the all or malpractice patient N.E.2d grossest the (traditional) surviving nothing is nothing approach chance only fifty-fifty rejection the loss of more than a proper or even with disease already have theory, which we seg- such rationale a treatment. Under Kansas, in fur- applicable society to exer- determined ment of often least able the traditional at ther consideration of judgment would be independent cise be irrelevant. proof standard of would mercy professionals of those KONENKAMP, ap- (dissenting). The relaxed standard Justice commonly referred to proach, as the Today’s unfairly [¶ decision targets 32.] approach, requires “substantial chance” the medical profession needlessly creat- present to that a plaintiff evidence sub- ing a expand damage new formula to significant or chance of survival stantial plaintiffs awards and a new class of to sue plaintiff or better was lost. If every them. The hallmark of notable threshold, meets this initial the causa- profound decision signaling change in the jury, tion issue is submitted to the using injustice law ais serious that would other- proximate the traditional cause standard case, however, go wise unrelieved. This whether, fact, in alleged to ascertain poor offers a prototype for sweeping in malpractice resulted loss of a changes in malpractice medical significant or substantial chance. Court now instigates. Under the common jury a preponderance must find process, law legislation yet in areas to has the alleged negli- evidence that control, the courts advance the gence proximate was the cause of law chance, fashion civil lost but lost chance remedies. 1-1-24. itself SDCL only significant need be a substantial or But Llewellyn as Professor ex- once chance, result, a better absent pressed, reshaping “conscious so malpractice, greater rather than a than move degree as to hold the of movement percent a better chance of result. down to degree truly which need presses.” Llewellyn, Karl N. The Bram- Id. 183-84. (1930). ble Bush a need exists This adopt Court also should this all, let it in be shown the facts of a case approach substantial chance to determine in the absence of current law to offer a plaintiff compensated whether should be sufficient redress. Whatever pressing any compensation amount of based here, might need plaintiff be unfilled they by being deprived on what lost of the utterly has show it. failed to opportunity early to receive treatment and gain the chance of realizing avoiding
physical harm or
ap-
life. This
Support
Changing
No Pacts
Medi-
proach
provides that an individual is
Malpractice
cal
Law
responsible
part
for their
of the resulting
opposing summary
[¶ 33.] Parties
damages.9
judg-
A percentage valuation and an
fact,
ment must meet fact with
assessment of
for a
demon-
damages
lost chance of
strating
genuine
compensate
does not
issues remain for
survival
over
an in-
15-6-56(e).
jured party,
trial.
unfairly
nor
SDCL
Curiously,
does it
make the
responsible
plaintiffs
for fault
appellate
unattribut-
briefs contain no facts.
specific
able to that
defendant.10
Perhaps
None.
is no oversight, though
exposure
The loss of chance
limit
endeavors to allow a
ap-
fault attributable to the defendant. This
recover for the diminished chances of sur-
portionment of fault was discussed in Dela-
viving
recovering
from a disease or mal-
ney. In Delaney, the court stated:
ady which
results
the health care de-
malpractice.”
fendant's
"Application
principle
of the
lost
Keith,
(quoting
375 illusory, imagine and a a of our rules. See SDCL insubstantial what it is violation 15-26A-60(5). Instead, jury will to make of it. plaintiffs ar- strain Most courts theory this hold be apply abstract discussion to gument consists accurately for valued adopting a new rule the lost on merits substantial, identifiable, quantifiable, on medical imposing additional conjecture speculation. without to or urged ap- we are to resort profession. radically Maryland theory Hosp. Fennell Southern Cen- prove the lost ter, Inc., 776, 206, Md. 580 A.2d malpractice medical law transform (1990) omitted). (citation a admit- as matter of With the seemingly Dakota South expert the facts ted lack of evidence on what policy, if progressive existed, it makes no sense to order the make no difference. judge jury. trial to submit this case to a record, examining nothing 34.] In How can meet the Daubert standard is this justify creating a emerges to new Dow mystifying. See Daubert v. Merrell way damages exceptional recover Pharm., 2786, 125 509 U.S. 113 S.Ct. Nonetheless, against providers. medical (1993); Rogen v. L.Ed.2d 469 see also a single the Court chooses sentence out ¶¶ Monson, 26-28, 2000 SD for reason to the entire record its remake J., (Konenkamp, con N.W.2d 462-63 Dr. law. an affidavit submitted In If the curring). members this Court Nebraska, opines Jorgen- he Rupp adopt are determined to the lost chance a chance to subse- prevent son “lost theory, they should wait at least until amputation right his quent outcome justify case arrives to it. A extremity.” lower What chance? sub- chance, chance, an even a minis- stantial Changes in Doctrine Should Await Rupp’s affidavit cule chance? offers a Demonstrated Need however, argument, In naught. oral Jor- keeping principles with the admitted, [¶ 36.] repeatedly “We genson’s counsel restraint, judicial adopting percentage damages.” prove cannot rejecting, should await the case that Indeed, this new tort full argued compensa- for counsel truly it into issue. To chance, small, calls confer matter how tion no premature lodgment in our theory “It negligence: was lost would because costly only encourages frivolous and it,” said, state he not be to seek worth courts. experimentation our When theory this percentage. Thus the Court comes, time we should care- appropriate espouses. adopts the one the is not advantages fully all the and dis- consider so, if the supposed Even counsel Here, advantages. generally Court Court nonetheless remanded case question, but discusses both sides theory, percentage trial on the lost counsel weighing specific without Dakota’s South testify percent- will someone” to “find the facts support circumstances. Even if summary judg- ages. Surely, reversing rule, adopting it serious presents new ment on a to find more evidence is promise questions people for the of this state. So- precedent. without potential for unfairness cietal costs elected am- Jorgenson himself expanded liability resulting against putate prolonged treat- rather take segment economy, pres- of the particular leg. amputation his chose ment heal He Fennell, A.2d ent real See problems. although Myo doctors at the Clinic told his Harrant, Md. (quoting at 214 Gaver v. sixty percent him he chance of sav- (1989)). A.2d Now, compensation it. he will ing seek assuredly Dakota retains leg, percentage [¶37.] lost for the South his but in- significant health concerns. For saving had of it while in the care probability he doctor, stance, populous the more areas seem care of former before he went his provid- adequate have numbers of medical Mayo legally to the Clinic. If this seems *10 ers, many determined, but -of our state’s' small commu- questions, the court are best nities have no doctors all. The cost for left to the Legislature to address and re- solve, maintaining simply high. them is too equipped as that forum is to conduct rely physician data, Some rural hearings, analyze communities compet- collect assistants, concerns, practitioners, 'nurse and other ing and make more informed medically They people. trained too will be decisions. subject to extended under prospect [¶ 40.] The of increased costs to broad today. new rule Court creates the consumer cannot be discounted. It
What will it our small cost communities? suggest seems naive to that creating a new providers Rural medical will be cause of action way and additional damages liable for increased the same as damages recover where none could be re- larger community their counterparts, even covered before will not increase claims. though severely rural medicine is likely con- The theory effect of this new will be strained economics in the availability higher malpractice premiums, insurance such things diagnostic as the latest in equip- which turn higher translate into costs ment. Emergency providers in rural ar- for health care with danger losing eas particularly be vulnerable. De- vital health they services where are most ciding immediately whether to treat States, or needed. In Knowles v. United ¶ transport critically 10, 60, stabilize for ill 1996 SD we can easily second-guessed, be especially acknowledged Legislature’s our grave con- when the patient’s .precarious chances are cern the availability “about and cost of even in care, the best of circumstances. Al- health especially in rural areas and though gives regard our Court little to small communities.” “Seeing a direct cor- worries, such other courts lend more relation availability between the of health weight reality. In rejecting the services and skyrocketing medical mal- theory, loss of chance an Alaska court practice premiums,” insurance the Legisla- the adverse affect on rural ture enacted a damages cap. Id. That considered care, writing, medical adoption any “the persist these concerns is shown the fact version of particular- ‘loss of chance’ seems that after our holding decision Knowles ly ill-suited to a state like Alaska where damages cap unconstitutional, former medical care must be delivered in Legislature remote damages reenacted a cap locations....” Crosby See v. United in 1997. See SDCL 21-3-11.
States, (D.Alaska F.Supp.2d 924, [¶ 41.] This Court writes that the loss of 1999) (listing the advantages and disadvan- chance doctrine has so far applied been tages of theory). the lost chance only to medical malpractice situations and Deciding widely whether to ex- likely most this is because statistics pand liability against members of the probabilities med- in medicine are not as profession ical policy invokes serious con- widely types available other malprac- cerns, perhaps properly more resolved tice. Yet we must prepared to consider Fennell, Legislature. our at 214. expansion A.2d of this rule to other forms of give Courts should “appropriate professional deference malpractice. It seems almost legislative action embracing policy goals suggest, discriminative to as some courts Crosby, have, initiative.” F.Supp.2d only doctors, nurses, and their court, Crosby in deciding wheth- colleagues in the medical field should stand er a claim for loss of subject chance could be greater liability for their errors. maintained in a fairness, medical malpractice action “it is doubtful that there is law, under Alaska stated that principled way the doctrine prevent we could appli- its significant “involves far-reaching poli- cation to involving similar actions other cy concerns affecting quality professions.” cost Kramer v. Lewisville Mem’l of health care....” Id. at (Tex.1993). 931. Such Hosp., 858 S.W.2d
377
sure,
system
appropriate
one-third of the
recov-
present
To be
[¶42.]
out, a
points
ery,
As the Court
patients
has its flaws.
while
66
who died as
unrecompensed
negligence goes
condition,
doctor’s
of the pre-existing
result
not
recovery was
patient’s chance of
less
overcompensat-
negligence, would
do
statutes
fifty percent.
Our
ed
one-third.
loss of chance rule
theory.
the lost chance
explicitly foreclose
produced
would have
errors in all 99
“for all
detri-
Plaintiffs
recover
cases.
by negligence,
proximately caused”
ment
2. That the defendant (treat)_(in failed (diagnose) timely manner) (under the applicable standard of care); and . the resulting
3. That degree or lessened Injury of recovery suffered _as a result of defendant’s failure was substantial. recovery” which
A is one chance for better “substantial estimated, judged, or being recognized capable weighed, instruction, used in this mind. reasonable As distinguished a factor “substantial factor” must causing merely negligible which had a effect _ n injury. Instructions Kansas
Pattern 3d 181.06 181.06VERDICT FORM —LOSS OF ISSUE—BETTER CHANCE RECOVERY
We, the jury, questions to present following answers submitted court:
1- you ___ Do find appreciable was denied for better to
recovery due the fault of the defendant?
Yes_No if question following you [Proceed to questions only “yes” answered question 1.] find,
2. do you (100), What as a of one hundred percentage were _ n (she) (he) for recovery, chances better had received proper medical % care?
3. you find, What (100), do a percentage of one hundred were _ n for actually chances under care given? better
_% considering your Without answers under questions, above
proceed damages by___. determine the sustained $__ A. Noneconomic date B. $__ Future noneconomic loss $_ C. expenses Medical date expenses $__ D.'Future medical $_ E. Economic loss to date $_ F. Future economic loss $_ TOTAL DAMAGES finding monetary damages toss Our stated noneconomic n suffering. 4B paragraphs pain 4A and includes jurors. questions ten Agreement each of above more Yes_ __No Presiding Juror