Kilpatrick v. Bryant

may pricked HIV—which have serious adverse dles which her were contaminated consequences point HIV, health at some far into with her claim is therefore insufficient fact, the future. Given Court has judgment as a matter of law. The of the situations, realized that in some whether reversed, hereby Appeals Court of and the physical injury has incurred literal proceedings cause remanded for further has little to do with whether the emotional opinion. accordance with this damages complained of are reasonable. This Laxton, realization was evident in where we REID, C.J., and O’BRIEN and plain- were able to discount the fact that the ANDERSON, JJ., concur. physical inju- tiffs had not suffered classic ry, objec- required substitute as the component prima

tive of the facie case the plaintiffs’ exposure carcinogenic direct

chemical. The same can be said of the Court Gamble; Appeals’ analysis the Court require physical injury

did not evidence of a plaintiffs directly because the fetus had been exposed potentially dangerous agent. to a Sandra K. KILPATRICK and William Appeals The Sixth Circuit Court of utilized Kilpatrick, Plaintiffs-Appellants, type analysis same Velsicol: al- though say the Court did that an “existent injury” necessary in was order to recover BRYANT, M.D., James W. damages, emotional it is clear that this “exis- Defendant-Appellee. injury” requirement tent was satisfied be- plaintiffs actually ingested cause the the de- No. 02S01-9107-CV-00027. fendant’s hazardous chemicals. Tennessee, Supreme Court of Because recent caselaw illustrates at Jackson. objec that we have never deviated from an tive standard for infliction of emo Dec. claims, merely tional distress but have em ployed objective type a different standard actions, changed

because nature of the hereby formally adopt expo we the “actual approach. sure” In order to emo recover tional based on the fear of contract AIDS, ing prove, at a minimum, actually he she was ex

posed assuming to HIV. And even that the HIV, actually exposed liabili ty only will attach to the extent that resulting emotional distress was within the range ordinary, experienced of that an person

reasonable under the circumstances. Moreover, any damages recoverable for emo

tional distress will be “confined to the time discovery [exposure] between negative diagnosis or other informa puts injury.”

tion that to rest the fear of Laxton, supra, at 434. negatively

Because Carroll has tested presence of HIV antibodies admitted she cannot nee- Smith, Sanders, III,

Gary K. Archie Wil- Domico, Shuttleworth, Smith, liam D. Williams, Memphis, & for defen- McNabb dant-appellee.

OPINION

DROWOTA, Justice. case, malpractice

In this medical the Plain- tiffs, Kilpatrick, Sandra and William appealed from a decision of the Court of Appeals affirming grant summary judgment Bryant, in favor of Dr. James W. Defendant-Appellee. granted We the Plain- application tiffs’ Rule 11 to decide whether cogni- action cause of for “loss of chance” is zable in Tennessee. For the reasons dis- below, recognize cussed we decline to such a cause of action and hold that there can be no liability in a medical case for negligent diagnosis or treatment that de- avoiding creases a chances of death or other adverse medical condition wherе the death or adverse medical condition would probably anyway. have occurred

I. alleged complaint in their

The Plaintiffs 18, 1987, May Bryant that on Dr. examined Kilpatrick lump Sandra at which time a was right Bryant detected her breast. Dr. mammogram performed ordered a was which 21, 1987, by May Thipavan on Dr. Boone. xeromammogra- interpreted Dr. Boone phy outline films stated no definite malignancy or indication of was mass Bryant Kilpatrick seen. Mrs. avers that Dr. mammogram informed her that the results negative. Approximately four months were later, September, Kilpatrick Mrs. was ex- physician biop- amined another who did sy. Kilpa- Cancer was detected Mrs. right mastectomy trick radical underwent month later for removal of the cancer right breast. Bryant and the

The Plaintiffs sued Dr. mammogram, radiologists performed who although radiologists later volun- were tarily Plain- dismissed from the case. Thomas, P.C., Thomas, Bryant negligent in Al tiffs claim that Dr. H. Thomas & Kilpatrick relying Memphis, plaintiffs-appellants. the treatment of Mrs. found in the affidavit in this case is radiologists and tion findings of the upon the Morisy. Dr. He states need to seek failing inform her of the complaint follow-up Specifically, their care. on a opinion, based I am of the medical alleges that certainty, degree of reasonable Defendant, Bryant, was months James W. of four [t]he in the treatment likeli- negligent and careless increased the performed operation Plaintiff, Kilpatrick, K. inas- suffering irrepara- Sandra Kilpatrick hood of Mrs. totally relied he should not have much as damage. ble radiologists, and findings of the upon the Bryant’s mo- granted Dr. The trial court suggest the failed to even that further he summary judgment and dismissed tion for further follow-up examination or need for Appeals affirmed on The Court of the case. consultation; likewise, and as a direct sup- affidavits physicians’ the basis that negligence, Plain- proximate result of his opposition plied by Plaintiffs tiff, Kilpatrick, K. suffered Sandra summary judgment did not estab- motion for complications general wor- and serious inju- Kilpatrick had suffered lish that Mrs. condition as sening of her cancerous have occurred ries that would not otherwise going undetected for of her cancer result Bryant’s negligence. The inter- for Dr. four months. approximately explained that mediate court claimed the Plaintiffs It is further bar, proof Plaintiffs’ is from the case at [i]n Kilpa- Bryant’s negligence required Mrs. Dr. Morisy which states affidavit of Dr. treatment, additional medical trick to seek (4) ... ‘delay of four months earning capacity enjoyment and suffer loss Kilpatrick of Mrs. increased the likelihood disablement, life, experience pain and and damage.’ suffering irreparable This than it her medical condition worse has made resulting from the future effect deals with Kilpatrick be. Mr. seeks would otherwise affidavit does physician. action of of consortium. for loss delay of four months not state the answer, Bryant that his In his Dr. denied irreparable dam- Kilpatrick to suffer Mrs. required standard of conduct fell below the likeli- merely that there is a age. It states physical condi- care. He also denied that the probability that the hood or any Kilpatrick from tion of Mrs. resulted damage. irreparable cause of care him. Dr. violation of the standard Appeals affirmed Accordingly, the Court summary judgment Bryant a motion for filed of the case. the dismissal pres- that the Plaintiffs failed to on the basis establishing ent evidence the elements II. forth malpractice action set present A resolution opposition § In to Dr. 29-26-115. T.C.A. in the requires it be viewed controversy Bryant’s summary judgment, motion principles of certain well-established context A. the affidavit of Dr. James Plaintiffs filed on this case centers of tort law. Because Schell, he was familiar with which stated that starting point malpractice, physi- recognized standard care 29-26-115(a). According to § T.C.A. Memphis ‍​​‌​​‌​​‌‌‌‌‌​​‌‌​‌​​​‌‌‌‌​‌‌​​​‌​​​​‌‌‌​‌​‌​‌​‌‍the care and treatment cians in and statute, plaintiff in a medical suspected breast cancer. He patients with following: proving the the burden of case has Bryant to meet that Dr. faded further stated (1) acceptable recognized standard care. Dr. accepted standard medical profession and practice in the professional only addressed the issues Schell’s affidavit thereof, any, that the de- specialty alleged violation of care and its the standard community in practices in the fendant Bryant. Plaintiffs also filed the Dr. in a similar commu- practices or which he Morisy, Kilpa- Mrs. Dr. Lee R. affidavit of injury or alleged nity the time the treating physician. Dr. subsequent trick’s occurred; wrongful action operated on Mrs. Kil- Morisy that he stated (2) with less acted That the defendant right radical mas- patrick performed ordinary and to act with concerning than or failed only proof causa- tectomy. The reasonable care in accordance such consequences go with duct.... of an act [T]he standard; and eternity, forward to and the causes of an go event proximatе back the dawn of human As a result of the defen- events, beyond. Any omission, attempt to im- plain- dant’s act or injuries pose responsibility upon tiff suffered such a basis would which would not oth- liability....1 result in infinite erwise have occurred. This statute codifies the common law ele- Id. negligence duty, duty, ments of breach of — proximate Causation and cause are causation, cause, proximate damages. negligence, distinct elements and both 739, Cardwell v. 724 S.W.2d Bechtol[ proven by plaintiff by prepon must be (Tenn.1987); Cunningham, Dolan v. Bradshaw, derance of the evidence. (Tenn.App.1982). S.W.2d No claim 869; Cooley, S.W.2d at McClenahan v. can succeed the absence of (Tenn.1991); Gore, S.W.2d Smith v. any one of these elements. Bradshaw (Tenn.1987). “Causation Daniel, (Tenn.1993). 854 S.W.2d (or fact) very concept is a different involving Cases the “loss of chance” proximate from that of cause. Causation theory recovery necessarily focus on the relationship refers to the cause and effect elements of causation and cause. injury. between the tortious conduct and the See, e.g., Kramer v. Lewisville Memorial proximate encompass The doctrine of cause (Tex.1993). Hosp., 858 S.W.2d 397 Causa panoply may deny es the whole rules that tion, fact, or cause in means that the liability for otherwise actionable causes of or harm would not have occurred “but for” Causation, Valuation, King, harm.” and negligent the defendant’s conduct. See Cald Injury Involving Chance in Personal Torts Co., well v. Ford Motor 619 S.W.2d 543 Preexisting Injuries and Future Conse 1981); (Tenn.App. Wyatt Winnebago In quences, 90 Yale L.J. 1355 n. 7 dustries, Inc., (Tenn. 566 S.W.2d Thus, cause, cause, proximate legal con App.1977). it is Once established that legal cerns a determination of whether liabili was, negligent point defendant’s conduct in ty imposed should be where in fact has fact, plaintiffs injury the actual cause of the McKellips been established. v. Saint Fran harm, the focus then becomes whether the (Okl.1987). cis 741 P.2d 467 “Cause policy responsibility of the law will extend fact, hand, in on the other deals with the ‘but negligent that consequences conduct to the consequences for’ of an act. ‘The defendant’s that have As in occurred. this Court stated conduct is a cause of the event if event Co., Inc.,

Doe v. Linder Const. 845 S.W.2d would not have for that occurred but con (Tenn.1992), “legal responsibility must be ” (quoting duct.’ Id. at 470 Prosser and Kee closely limited to those causes which are so ton, (5th 1984)). The Law Torts 266 ed. connected with the result and are of such significance justified impos that the is law appeal, The critical issue in this ing liability. boundary Some must be cases, in all of chance is loss whether the Doe, (quoting set....” at 181 S.W.2d failed, law, Plaintiffs have as a matter of Keeton, Prosser and The Law Torts 264 causation, i.e., establish the existence (5th 1984)). Fixing boundary ed. of lia purported malpractice actually bility purpose underlying is the the element complained McKellips, caused the harm of. proximate cause. Proximate cause question 741 P.2d at 470-71. This dominates merely requiring prov

is the limitation which the courts the rule causation be because placed upon responsibility preponderance have the actor’s en of the evidence dic consequences for the of the actor’s con- tates that Plaintiffs demonstrate that Cooley, liability wrongdoer In McClenahan v. 806 S.W.2d 767 from because of the manner (Tenn. 1991), harm; three-pronged negligence we stated that has which resulted in (1) (3) giving test for cause is: the defendant's and the harm rise to the action could reasonably anticipated by conduct must have been substantial factor in been foreseen or of; bringing complained person ordinary intelligence prudence. about the harm policy there is no rule or relieve the Id. at 775. should condition, and this is such likely more not the medical condition negligence Lindsey injury. Corp., v. Miami Dev. a 51 chance of percent that he less than (Tenn.1985) (“[pjlaintiff optimal care. recovering even with introduce evidence which affords reason- subject physician thus it for the able basis conclusion tortiously liability con the extent he likely than not that the conduct the defen- by permitting preex harm tributes to the result”). a cause in To dant was fact of isting progress, byor accelerat condition to sure, of an the mere occurrence ing 90 Yale L.J. at 1360. its harmful effects. admittedly prove negligence, and an does genesis its of chance doctrine has necessarily does lia- negligent act entail (4th States, in Hicks v. 368 F.2d Doe, United bility. 845 S.W.2d at 181. Even when Cir.1966). in Hicks held The Fourth Circuit defendant it is shown breached duty plaintiff, plain- physician care owed that a breached the standard requisite diagnose tiff must still establish the causal ob- failing care an intestinal connection between the defendant’s conduct patient struction from which the died. (“Proof plaintiffs injury. Id. proof that it was more demonstrated without of causation is noth- than not have survived ing”). negligently diagnosed had she not been court, Despite proof, defendant. III. dicta, stated: In the context оf medical mal negligent action When a defendant’s doctrine, practice, the “loss of chance” some effectively per- inaction has terminated times called the risk of “increased harm” survival, son’s chance of it does not lie doctrine, permits where the conjectures mouth raise defendant’s diagnosis or treatment of a medical as to measure of chances that he the the patient being condition results in the de put beyond possibility has the of realiza- prived surviving of a less than even chance of any possibility tion. If there substantial recovering. See Loss Chance in Medi de- and the defendant has survival Cases, Malpractice cal 20 Mem.St.U.L.Rev. (1989). stroyed it, he is 81, answerable. way, pa 91 Stated another the tient has a cause of action for the in increase Hicks, Primarily at 632. from this 368 F.2d of harm or the risk loss of a better chance of courts, quoted explained language, several as surviving, recovering, or a more favorable below, fashioned the loss of chance doc- have “Traditionally, Yale result. 90 L.J. at 1365. case trine which Plaintiffs in the instant concept of ‘loss of chance’ been em however, note, adopt. ask this Court We ployed possibility in the situation where recently re- the Fourth Circuit has of a more favorable outcome has been denied Hurley viewed Hicks decision in v. United its negligence, the defendant’s where (4th States, Cir.1991), in F.2d 1091 which 923 already peril in be quoted language it above referred underlying at cause of an condition the time.” precipitated “dicta misunder- [has] which Price, Chance?, Causation - The Lord’s Lost standing throughout Id. at courts.” (Oct. 735, Comp.L.Q. Int’l and 38 735-36 in Hicks Hurlеy 1093. court held that 1989); Manning see also v. Twin Falls Clin change was not no- intended traditional 47, 2, 122 and 51 n. P.2d ic Idaho 830 tions of causation (1992) (increased 1185, 1189n. 2 risk of harm cases, rejected the doc- loss of chance plain refers to whether the thereby cause trine as a viable risk plaintiffs tiff has increased the of harm action — widely Id. negating held view of Hicks. while loss chance refers whether 1095, court the tra- 1099. The reinstated negligence deprived plaintiff of proving for which ditional standard causation recovery, opportunity cases ana requires showing probability of survival lyzing interchangeably). terms use them recovery greater percent ab- applies than 50 doctrine to those situations preexisting negligence. sent which the suffers from the defendant’s 600 Kramer,

Prior to the Fourth (emphasis Circuit’s clarification at 400 decision, Hurley jur- original). Hicks several Several courts have viewed this and, unduly upon consequently, result as harsh language quoted isdictions seized have relaxed the traditional above to causation stan- relax traditional standard of causation, i.e., not, dard to allow where the and have proves physician’s deprived conduct him opportuni- held that the destruction of a lost possibility of a better medical result. ty satisfy for survival or will jurisdictions adopted pure Ten plaintiffs standard for causation even (or form of loss of chance at least have not avoiding chance of the ultimate harm was undertaken to limit of action with i.e., improbable, percent. less than 50 language). Voegeli “substantial chance” v. Hence, key inquiry presented by these (8th Lewis, Cir.1977) (applying 568 F.2d 89 types of cases whethеr there can be “liabil- law); Thompson City South Dakota v. Sun ity treatment that decreases a 597, Hosp., 141 Comm. Ariz. 688 P.2d 605 patient’s avoiding chance of death or other (1984); County Hosp. Richmond Auth. v. medical conditions [because] adverse re- Dickerson, 601, Ga.App. 356 S.E.2d 548 probably anyway.” sult would have occurred Louvar, (1987); DeBurkarte v. Kramer, 858 S.W.2d at 398. There are now (Iowa 1986); Humberger, Aasheim v. many coming cases down on both sides of 127, (1985); Mont. 695 P.2d 824 Annotation, question. See Medical Mal- Scafidi Seiler, 93, (1990); N.J. 574 A.2d 398 practice: Causality, “Loss Chance” Bashline, Hamil v. 481 Pa. 392 A.2d (1987). jurisdictions A.L.R.4th ‍​​‌​​‌​​‌‌‌‌‌​​‌‌​‌​​​‌‌‌‌​‌‌​​​‌​​​​‌‌‌​‌​‌​‌​‌‍10 (1978); Group Herskovits v. Health Co- placed have considered the issue can be into op., 99 Wash.2d 664 P.2d 474 (1) general categories: pure one of three CAMC, Thornton v. 172 W.Va. (2) chance, chance, loss of a substantial (1983); Ehlinger Sipes, S.E.2d causation, approach the traditional (1990). Thus, Wis.2d N.W.2d 754 all-or-nothing sometimes referred to as the example, pure, under the form of loss of approach, see 90 Yale L.J. at 1365. chance, percent who faced a 95 dying appropriate chance of even with medi- cal still care would have a cause of action earlier, many negli- As stated against physician negligently who de- cases, gence medical condition is prived percent him of the 5 chance of surviv- percent such that he than has less a 51 al. recovery chance of survival or even with optimal medical care. The traditional but for (2). prevents test of cause fact under jurisdictions In recog addition to the ten patient’s such circumstances because the con- nizing pure theory loss of chance as a viable dition would more than not be the recovery, pеrmit six more the cause of same even if the defendant had not been requirement neg action but add the that the Court, negligent. Supreme The Texas ligence be shown to reduced a “substan have

thoughtful opinion authored Justice Chief possibility” tial chance” or or “substantial Phillips, recently explained problem as “appreciable chance” of a favorable re end follows: given appropriate sult medical treatment. (8th Milner, Cir.1970) injuries preexisting or v. [Where] illnesses Jeanes 428 F.2d 598 law); patient’s avoiding (applying have made a chance of Arkansas Roberson v. Coun selman, 1006, (1984); improbable harm the ultimate even before 235 Kan. 686 P.2d 149 443, allegedly negligent Hosp., conduct occurs— Falcon v. 436 Mich. Memorial i.e., (1990); patient impair- McKellips would die or 462 44 v. suffer N.W.2d Saint (Okla.1987); anyway application Hosp., 467 ment these tra- Francis 741 P.2d —the Center, totally principles Vegas ditional causation will bar Perez v. Las Medical 107 Nev. 1, (1991); recovery, negligence Kallenberg if such has de- 805 P.2d 589 v. Beth even 177, prived avoiding Hosp., patient of a chance of Israel 45 A.D.2d 357 N.Y.S.2d (1974). approach apparently the harm. 508 This de

601 (Miss.1985) Campbell, 515 Ladner v. where and signed prohibit claims (Miss.1987); Pillsbury-Flood v. 882 for So.2d a realistic basis a favorable does not have 299, 512 A.2d Hosp., Portsmouth 128 N.H. negli the defendant’s outcome even absent (1986); Charity, 27 Cooper v. Sisters time, 1126 “a gence. the same health care At (1971); 242, 97 272 N.E.2d Sherer Ohio St.2d provider responsibil not be able to avoid will (1986); James, 404, 148 351 S.E.2d v. 290 S.C. simply by saying ity conduct Hosp., 858 Kramer v. Memorial Lewisville anyway, patient would have died (Tex.1993); Hays, v. 241 397 Blondel patient had a chance to when that reasonable 467, generally, 340 see Va. S.E.2d Pеrez, at 593. live.” 805 P.2d 443, Tulin, Grody 365 A.2d 1076 v. Conn. allowing of chance Courts (1976) (defendant physicians were entitled to impaired as compensable view jury of law where was judgment a matter destroyed opportunity for a favor- or more an upon speculate whether earlier called result, able not the unfavorable re- diagnosis treatment of the can .See, e.g., Falcon sult v. Memorial itself. life); might prolonged her cer have Cornfeldt 44, 436 Mich. N.W.2d (Minn.1980) Tongen, v. (1990). courts, According these inter- notwithstanding (judgment verdict protect law is the est which the seeks granted to the defendant should have been impaired destroyed Thompson chance. or surgery physician, despite expert proof City Hosp., 141 Sun Comm. Ariz. patient death to the increased the risk of (1984). 688 P.2d When the disease, underlying with liver because impaired destroyed itself as the is defined or prob that it was failed to show more opportunity, plaintiff can recover for that operation able than not that but for she impaired destroyed opportunity even recovered); would have Horn National though ultimate, the chances of an favorable Ass’n, 654, 131 Hosp. 169 Or. P.2d percent medical result are less. Id. (dismissal delay in diagno upheld where at 53-54. The reason N.W.2d sis was not shown to have resulted harm link which the must es- causational that would occurred even if there not have negligence tablish is between defendant’s diagnosis). Many had been no destroyed impaired opportunity, objection “recog these raise the courts negligence between the the unfavora- nition of mere chance as recoverable item Plaintiff, therefore, ble medical result. fundamentally of loss contradicts the essen probable it is more not that Falcon, 462 tial notion of causation.” negligence defendant’s the cause C.J., dissenting). (Riley, N.W.2d opportunity avoiding fact of the reduced jurisdictions do adhering to this view so be ultimate, unfavorable Id. at 53. outcome. plaintiffs ought required cause to be to show likely than not was the unfavorable in fact of words, recovery In jurisdictions result. other is disal Although several decid plain that lowed unless it can be shown to permit ed the cause of action for loss of physical tiff would have suffered the chance, not many rejected others have either i.e., negligence, harm but for the defendant’s explicitly at of chance or have least refused (greater than not probable that it is more typical under the loss of allow percent) negligence See, Lund, than 50 that but for the e.g., v. chance scenario. Alfonso plaintiff (10th Cir.1986); of the defendant would have Gooding v. F.2d 958 Id. at 47. (Fla.1984); recovered or survived. Hosp., 445 University So.2d 1015 Manning v. Twin Falls Clinic and IV. (1992); 830 P.2d 1185 Idaho Watson Serv., bar, Returning case at Emergency we v. Medical 532 N.E.2d Jones, proven Plaintiffs have v. 439 must decide whether (Ind.App.1989); Walden “inju negligence caused (Ky.1968); Fennell that the Defendant’s S.W.2d 571 v. Southern oc Maryland 206 ries which not otherwise have Hosp., 320 Md. 580 A.2d 29-26-115(a)(3). § As the Thompson, curred.” Clayton v. 475 So.2d 439 T.C.A. recently Sixth Circuit noted Boburka preponderance of the evidence in a Adcock, (6th Cir.1992), plain- 979 F.2d malpractice case. Causation in fact malpractice tiff in a medical case in Tennes- probability, possibility, is a matter of not “prove likely see must that it is more case, in a medical such must be not that the defendant’s degree shown to a reasonable of medical plaintiff injuries to suffer which would have South, certainty. Hosp. White v. Methodist not otherwise occurred.” Id. at 429.2 In this 844 S.W.2d (Tenn.App.1992). 648-49 regard, we reaffirm our observations made earlier, As stated Plaintiffs Lindsey, supra: present case have established that there plaintiff must introduce evidence is a “likelihood” that in proper which affords a reasonable basis for the diagnosis “irreparable and treatment caused likely conclusion that it is more than not damage.” The term argu “likelihood” can the conduct of the defendant was a ably equated “probability.” with a See possi- cause in fact of the A result. mere Webster’s Third New International Dictio bility of enough; such causation is not (Merriam nary, Co.1971); Unabridged when pure spec- the matter remains one (6th ed.) (West Dictionary Black’s Law conjecture ulation or probabilities or the 1990); Hosp. contra White Methodist balanced, evenly are at best it becomes the (medical South, supra malpractice case duty of the court to direct a verdict for the equating possibility likelihood with a defendant.... insufficient). Nonetheless, therefore we are not, however, plaintiff required is persuaded theory that the loss of chance prove beyond the case a reasonable doubt. fundamentally is at odds with the plaintiff negative entirely need not requisite degree of medical certitude neces possibility that the defendant’s conduct sary to establish a causal link between the was not enough a cause and it is to intro- injury and the tortious conduct of duce per- evidence from which reasonable physician. earliеr, plaintiff As stated may sons conclude that it probable is more Tennessee must physician’s that the event was caused the defen- not_ act or omission more than not was the (Citation than that it was dant. Lindsey, cause in fact of the omitted). harm. testimony A doctor’s that a cer- requirement necessarily 861. This thing possible tain is is no evidence at all. implies opinion His have had a possible as to what is is no surviving better than even jury’s speculation valid than the own chance or re covering possible. underlying as to what is or is not from the Almost condition ab anything possible, improp- physician’s negligence. is and it is thus sent T.C.A. 29-26-115(a)(3) jury § er allow a to consider plainly requires and base a upon ‘possible’ verdict cause of death. injury suffer “which would not other (Citation omitted). possibility The mere of wise statutory have occurred.” This lan more, relationship, a causal in- without is guage simply way expressing another ... sufficient. requirement would not negli have occurred but for the defendant’s Lindsey, Thus, proof 689 S.W.2d at 861-62. gence, our traditional test for cause in fact. equating “possibility,” causation to a have,” Although “might have,” have,” can recover for harm “may “could sufficient, law, stemming aggravation as a matter from the of an to establish exist illness, required ing plaintiff’s plaintiff may nexus between the dam recover ages and the defendant’s tortious conduct for the loss of a less than even causation, proof ‘signif- 2. The Sixth Circuit in Boburka concluded that cient of we believe a adopted Tennessee has not theory the loss of chance plainly likely icant chance' falls below the 'more malpractice in medical cases Rather, tеstimony than not' standard. in this “but instead continues to follow traditional [cau- ‘significant concerning compa- case a chance' is principles.” sation and cause] Id. at testimony possibility’ rable to about a 'mere re- Thus, “[a]l- the court determined that jected by Supreme the Tennessee Court...." Id. though requires law Tennessee this Court to at 429. draw a fine line between sufficient and insuffi- injury, actually then plaintiffs result. cause the obtaining a more medical favorable requir- justification for prevents there is no rational traditional test for cause in fact cost of patient’s ing condition the defendant to bear the reeovery because the damages, even plaintiffs than the same more not be would n n negligent. had not if the defendant been * * * * Accordingly, that a we hold impose liability it is I believe unwise i.e., not, likely than probably, who profession in on members harm had have suffered the same would those difficult circumstances as now such rendered, medical treatment been proper deterring than this Court. Rather before in the to no for the increase entitled conduct, imposed only rule undesirable or the a chance of of harm loss of risk for inevit- penalizes profession the medical result. obtaining a more favorable unfavorable The lost chance able results. Riley Supreme Michigan Justice Chief theory to know the presumes of survival Falcon, Court, supra, re in her dissent in unknowable. regard: our sentiments in this flects Falcon, This is not 462 N.W.2d at 64-68. theory ‘lost of survival’ chance say not recover for an could only a by plaintiff represents not urged aggravation physical of his condition he proof of the for redefinition threshold probabilities a balance of proves causation, but a fundamental redefinition caused the harm negligent act omission meaning law. of causation tort than even chance of when there was better n n n n n n begin recovering to with. Smith, argues dissent that Truan Relaxing requirement causation (Tenn.1979), opinion an which perceived might correct unfairness “ambiguous,” see described as Bo has been possi- plaintiffs prove who could some (6th Adcock, Cir.1992), F.2d burka caused bility that the medical support adoption of loss of lends probabili- could prove an but not delay in It is true that in Truan the causation, chance. ty time could at the same diagnosis cancer in injustice. providers create an Health care the chances of or accelerated the creased defending could find cases sim- themselves Court, 76. The patient’s death. Id. at improve ply because fails to through Cooper, speaking held that Justice not processes where serious disease are support a was sufficient to find the evidence action arrested because another course of As con ing negligence. Id. at 76-77. possibly bring could result. No better however, dissent, dispositive by ceded professional malpractice defendant other negli physician’s in Truan issue was liability carries this burden of without recog should gence, not whether Tennessee plaintiffs requirement the al- action for loss chance. nize a new leged negligence probably pos- rather Thus, upon called this Court ap- sibly injury. cannot We implica analyze the Truan to examine and an obvious prove the substitutiоn of such adopting of chance. This Court tions of loss inequity perceived one. cite, discuss, any much cases or less did theory does The lost of survival authority remotely related even other merely the threshold more than lower of chance. causation; fundamentally alters it meaning of causation. cause in decline to relax traditional We recognize a new cause premise upon requirements fact The most fundamental Accordingly, liability may be loss of act of action for chance. which omitted.) (Citation not entitled to Plaintiffs this case are based is cause fact. opportuni- impaired as a for the regarded or omission recover An act is not obtaining ty a more favorable medical particular an event if event for. cause of harm, (Citation result, increase risk of in the without it. occurred omitted.) did not loss of a better chance If the acts defendant’s damages Kilpatrick survival. Plaintiffs also seek tember Ms. was examined treatment, pain by additional physician, diagnosed medical and suf- another who cancer etc., fering, earning capacity, directly right performed loss of in promptly breast and right mastectomy of the attributable Defen- radical for its removal. dant. We conclude these items of dam- complaint alleges Bryant neg- The Dr. ages are recoverable because the Plaintiffs ligent relying findings in on the of the radiol- damages have shown that such ogists May in and in his failure to have been incurred but for the Defendant’s Kilpatrick advise Ms. the need ‍​​‌​​‌​​‌‌‌‌‌​​‌‌​‌​​​‌‌‌‌​‌‌​​​‌​​​​‌‌‌​‌​‌​‌​‌‍for fol- Thus, negligence. grant summary low-up complaint examination. The also av- judgment to the Defendant is sustained to proximate ers that “as a direct and result of the extent that it relates to the loss of chance negligence, Plaintiff, Kilpa- his Sandra or the increase in the risk harm. Sum- trick, complications suffered more serious mary judgment as to the Plaintiffs’ claims for general worsening and a of her cancerous the other items of noted above is condition as a going result her cancer split evenly reversed. Costs are to be be- months,” approximately undetected for four parties. tween the requiring her to “seek additional medical expense, pain treatment ... at additional and

O’BRIEN, J., concurs. Plaintiffs; suffering to the and that the wors- REID, C.J., separate concurring files ened situation mentioned herein- opinion. may life-threatening.” above also be result, complaint asserts as a Sandra ANDERSON, JJ., DAUGHTREY and file Kilpatrick earning capacity, “suffered loss of separate concurring dissenting opinions. and ill, she has been rendered sometimes dis- REID, Justice, concurring. Chief abled, engage and in is unable to the useful enjoyable life, pleasures and all as a direct case, This medical in which the Bryant’s] negli- [Dr. and result of plaintiffs allege negligent- that the defendant gence.” alleges It further that the cancer, ly diagnose presents failed to breast husband, Kilpatrick, William de- been summary for review the trial court’s award of services, prived society, and consor- judgment, Appeals, affirmed the Court of answer, Bryant tium of his wife. In his Dr. finding that the record does not establish a applicable denies that he violated the stan- disputed issue of fact as to causation. This dard of care and further denies that Court’s review shows that the affidavits filed consequences which the suffered plaintiffs, Kilpatrick Sandra K. by any applica- were caused violation of the Kilpatrick, William are sufficient to with- ble standard of care. summary judgment plaintiffs’ stand as to the bodily injury, claim including pain The case is before the Court on this second suffering, disfigurement, expenses, defense, summary in raised a motion for earning capacity loss of and loss of consor- judgment, any the denial of causal connection tium, but not as to a claim for loss of a better negligence alleged between the and the dam- chance of survival or an increase in the risk ages alleged. plaintiffs, opposition of harm. summary judg- the defendant’s motion for ment, complaint alleges that the defendant filed affidavits made James A. Schell, M.D., Bryant Morisy, Dr. James examined the Dr. W. Lee M.D. May Kilpatrick Ms. Sandra 1987 and de- states in his affidavit that he is famil- Schell lump right recognized tected a in her breast. He sched- iar with the standard of care for Tennessee, mammogram, performed physicians Memphis, uled which was and the Kilpatrick alleges patients suspect- later that month. Ms. care and treatment of with Bryant Dr. advised her that the results of ed breast cancer. He further states that mammogram upon negative were and that he based a review of the medical record suggest participate pertaining plaintiff, did not she “should to the treatment of the any type follow-up except Kilpatrick, opinion treatment on a Sandra it is his later, accepted Sep- routine basis.” Four months defendant failed to meet the stan- facts, affidavit, legal party specific of medical care. In Ms Dr. to set forth dard conclusions, by Kilpa- using affidavits or the dis- Morisy operated he on states that Ms. 65.03, in trick, listed Rule es- right covery materials for carcinoma of the breast and disputed, are mastectomy. tablishing that there indeed performed modified a radical genuine creating a issue that stated, material facts specifically: He further trier of fact needs to resolved the be a opinion, I am of based on the necessary.... and that a trial is therefore certainty, degree reasonable of medical nonmoving offered the evidence (4) in the four months party as must be taken true. operation performed increased the likeli- Kilpatrick suffering irrepara- hood of Ms. causation, at In to establish Id. order damage. ble that, in plaintiff must show the absence proba it more negligence, is defendant’s produced by No other evidence either injury wMch the ble than not that party. plaintiff complains would have occurred. requirements for a successful medical Lindsey Development Corp., 689 v. Miami § malpractice action are in 29- stated T.C.A. (Tenn.1985). S.W.2d 861-62 provides, part That 26-115 statute pertinent, to mo- Consequently, follows: in order withstand a as plaintiff summary judgment, for tion (a) action, In a claimant relationsMp between the a causal proving by have the evi- shall burden alleged alleged. (b): as provided dence in subsection Also, for is the condition wMch (1) recognized accept- standard of sought an for must constitute wMch professional practice profession able in the damages may be under recovered Tennessee thereof, specialty any, and the if cаse, plaintiffs law. In contend tMs practices community defendant in the the harm includes the loss of a sustained practices

wMch he or in a similar commu- alleged inju- better chance survival. That nity alleged injury the time complaint ry is as described follows: occurred; wrongful action likewise, proximate a direct and (2) That the defendant acted less with Plaintiff, negligence, result of Ms Sandra ordinary than or failed to act with Kilpatrick, K. suffered serious com- reasonable care accordance such with worsening plications general of her standard; and her cancerous condition as result of can- proximate As result the defen- going approximately cer for undetected omission, negligent act plain- dant’s four months. injuries tiff suffered which would not oth- And erwise further: have occurred. statute, situation mentioned

Under tMs to worsened medical entitled may life-threatening. hereinabove also proves negligence recover on and, part physician, to a reason allegations Assuming that are these suffi- degree certainty, negli able of medical for cient state claim “loss better gence plain was the cause of the “increase in the of survival” and/or damages. e.g., tiffs See White Methodist harm,” go risk of is entitled (Tenn. South, Hosp. 844 S.W.2d 648-49 regard only compensable inju- trial with App.1992). encompassed physicians’ affi- ries within case, plain- At issue in tMs whether the support davits. causation of The affidavits presented response proof, tiffs sufficient bodily traditional incident judgment, motion summary to create However, Morisy’s injury. pro- Dr. affidavit a disputed question Byrd fact. Under any support other than vides no claim Hаll, (Tenn.1993), bodily injury. merely He attests to judg- “irreparable damage.” the party seeking summary When the “likelihood” of motion, properly supported “probability” ment or “the makes “Likelihood” means nonmoving being likely probable.” quality the burden then shifts to the or fact (2d English Dictionary Hospital, ed. Memorial S.W.2d Oxford 1989). term, may (Tex.1993), which be read to not,” “more legal mean than asserts assuming adopt we the loss of doc- However, phrase causation. the trine in the context of mal- this medical “irreparable damages” precise. is less than action, practice it is doubtful that there is plaintiff Since does not undertake to any principled way prevent we could its death, a claim wrongful only assert for it is application to involving similar actions oth- way claiming another of permanent bodily professionals. er injuries. I Accordingly, judg- concur summary that issue, then, The further is “loss of whether plaintiffs’ damages ment as to the claims for survival, a better chance of or an in increase bodily injury for summary be reversed and (loss chance) the risk of harm” recog- of is judgment, plaintiffs to the extent that bodily injury as a nized under Tennessee law. damages seek for loss a better chance of If it is an damages may for which be harm, in survival or an increase the risk of be recovered, summary judgment the motion for sustained. complaint must denied because the and the medical proxi- affidavit assert that “as a DAUGHTREY, Justice, part concurring in result of mate the defendant’s act dissenting part. in and omission, plaintiff injuries or suffered which would not otherwise have occurred.” agree I with the in lead conclusion 29-26-115(3). § T.C.A. opinion that the trial full court’s order of summary judgmеnt in the defendant’s favor though It should be noted that even permitted plain- should not be to stand. The damages measure in discussed the tradi- alleged negli- tiff has that the defendant’s damages bodily injury tional context of gence proximately additional, caused her un- death, “injury” the essential nature of the treatment, necessary suffering, medical chance or risk. opinion The main finds lack earning capacity, loss of for all of which proof of causation because the does not show majority recovery permit in this case would that “had a better even I damages. separately write out point surviving chance of recovering from the reasoning that supports the same this underlying physician’s condition absent recovery of damages by limited negligence.” Supra at 602. The dissent supports recovery also damages would follow Perez v. Las Vegas Medical her lost chance risk increased Center, 107 Nev. 805 P.2d harm, at trial establishes discount the amount recoverable injury, recognized by this like the others death, find, person’s wrongful majority, proximately was de- Specifically damages “[the] amount of re- negligence. fendant’s equal coverable is percent of chance negligence] [of survival] lost [due multi- Moreover, limiting in recovery at the sum- plied by damages the total amount mary stage, judgment majority ordinarily wrongful which are allowed in existing law brushed aside Tennessee case action.” death recognizes implicitly patient’s right J., Daughtrey, dissenting (quoting at 613 increased risk of recover for harm in a medi- Center, Smith, Vegas Perez Las Medical 805 P.2d cal action. See Truan v. 592). (Tenn.1979), at Under this formulation the claim 578 сir- S.W.2d 73 which the statistical probability, plain- as a virtually neither the cumstances were identical to those complete tiffs alleged complaint nor her death would In now before us. Recognizing past affect awarded. Drowota’s his view Justice criticism of of chance an colleagues’ perceived as for which dam- es- failure to adhere to may would, ages prin- be awarded precedent, at least his as tablished current failure ciple, concept opinion revolutionize the give appropriate traditional author of lead injury. further, seems, bodily best, weight And stated at as to Truan uncharacter- See, Middlebrooks, Phillips e.g., Justice Chief Kramer v. Lewisville istic. State v. (Tenn.1992) (Drowota, J., means standard dissenting). concurring least the defendant percent responsible for the outcome. Under Truan, here, plaintiff alleged In “all-or-nothing ap- called the what has been physician part on the her allocating damages proach” of under diagnose cancer for some failing to breast rule,1 successfully the plaintiff who meets a past four the time that the tumor months percent 100 of percent 51 standard recovers detectable, thereby permitting the can- was defendant, damages the even the from case, cer metastasize. In that we allowed to only may have been though the defendant damages proof that Dr. of based on partly responsible for the result. Converse- materially negligence in- Truan’s “either only ly, that the plaintiff who can establish the chances of or accelerated Mrs. creased (or true, percent responsible was 50 Smith’s death.” Id. at 76. It is as the defendant less) notes, nothing from tortfeasor. majority disputed the issue in collects the physician’s the of the Truan was existence noted, high court this “all- As one state negligence scope damages the or-nothing approach” posi is “an extreme $186,000. by jury, which awarded totalled “clearly tion” and distorts traditional time, At there no Id. at 74. the same principles of causation.” DeBurkarte v. Lou Court, by the implicit explicit, criticism (Iowa 1986). var, 131, 137 In undermine the full would award dam- response to the overinclusive and underinclu- ages plaintiffs opportu- in Truan for the lost rule, rapidly growing sive effects nity recovery. make a full developed of common law courts has number contrast, By opinion the author of the lead analysis proximate an allows ultimately rejects in this case criticizes and malprac the allocation of in medical the “loss of chance” doctrine as destructive of acknowledge pa tice cases to proximate cause standard in medical mal- put in their tients who themselves doctors’ practice Although cases. this view has been percent than 51 chance of hands with less cases, by a accepted small handful of the vast survival, remaining deprived of their are jurisdictions country majority of in this have negligence. physician chances rejected A analysis it. will demon- strate the reason that the of chance” “loss The “loss chance” “increased risk gained rapid doctrine has such and wide- actually roots in harm” doctrine has its con spread acceptance. See, Hicks, Chaplin e.g., 2 K.B. tract law. (C.A.1911).2 ap The doctrine was first

The traditiоnal view of cause in plied to torts in the context maritime malpractice requires action See, “duty e.g., cases. Gardner v. to rescue” patient that the suffered would (4th Carriers, Inc., F.2d Nat’l Bulk negligence not have occurred but denied, Cir.1962), cert. 372 U.S. 83 S.Ct. defendant. Where the (1963).3 only injury, “duty is not The defendant cause of 9 L.Ed.2d 721 Causation, Valuation, contract, King, 1. Chance Per- but the value of a chance to win the Injury Involving Preexisting The held was a sonal Torts Condi- contract. court that such chance Further, Consequences, compensable Future 90 Yale L.J. interest. the court noted tions and difficulty assessing damages should recovery. bar Chaplin, plaintiff of 50 In was one semi- beauty in a contest. out of the finalists Twelve Gardner, ship failed to at- 3.In the master of a three-year acting to be were awarded con- tempt his who to rescue one of seamen had fallen notify failed tracts. defendant last seen on the overboard. The seaman was until it was too her selection as a semi-finalist earlier, although it vessel five and one-half hours appear personal her to for her interview. late for long he been overboard. was not known how had result, As chosen to re- was not trial, testimony presented that there was At acting plaintiff brought ceive the contract. The possibility attempt a rescue could have some jury an deter- action breach of contract. life. court stated: saved the seaman’s mined that value of lost chance was £100. him, duly it judgment less was affirmed It was rescue The lower court's attempt positive duty Appeal, recognized plain- sincere was a make a Court of which duty acting its suing is оf such nature that tiff was not for the value of at rescue. The (4th Cir.1991) States, analogy rescue” was later in a medi F.2d utilized law). Maryland cal case as in Hicks v. (applying dictum (4th Cir.1966) States, 368 United F.2d 626 meantime, however, In the various courts law). case, (applying Virginia In that possibility” had relied on the “substantial against Navy brought suit doctor language Hicks to relax traditional under Tort the Federal Claims Act. Evi standard causation hold that and to de dence indicated would had possibility,” of such a struction “substantial percent surviving more than a 50 chance of percent even if it amounts to less than a 50 an of her small had obstruction intestine she recovery, satisfy chance of that stan negligently diagnosed by not been the doctor. See, Milner, e.g., dard. Jeanes v. F.2d Appeals The Fourth Circuit Court (8th Cir.1970) law); (applying Arkansas Hicks said: Kallenberg v. Beth Israel 45 A.D.2d (1974). 177, courts, action When defendant’s 357 N.Y.S.2d 508 Other effectively per however, recognized oft-quoted inaction have the has terminated survival, passage son’s it not he in from does Hicks set out above was mere conjectures development the defendant’s mouth to raise and have rested dictum the analysis as to measure of grounds. the the chances he their on other put beyond possibility has the realiza example, For the “increased risk of harm” any possi tion. If was there substantial applied formulation has been to medical mal- bility of survival and the has defendant practice jurisdictions eases several on the it, destroyed Rarely he is answerable. is it (Second) § of Torts basis of Restatement 323 possible to demonstrate to an cer absolute (1965). provides: Section 323 tainty happened would in cir what have ... render One who undertakes to services wrongdoer the allow cumstances did not to recognize to another -which he should as pass. come to The law does not necessary protection the other’s existing require plaintiff circumstances person things, subject liability to is to certainty to show to physical resulting the other for harm from hospitalized lived had would have she been to his failure exercise reasonable care to operated promptly. Harvey on v. Silb perform undertaking, his er, (1942). 510, 2 300 Mich. N.W.2d 483 (a) his failure to such care exercise in- (emphasis 368 “substan- F.2d 632 added to ... (empha- creases the risk such harm possibility”). tial added). sis possibility” courts interpreted discussion “substantial Some Section 323 superfluous relaxing Hicks because the record as the standard for the burden of have, consequently, proof established that there was a “reasonable for causation and probability” adopted the decedent would have a “substantial factor” standard. Un approach, plaintiff survived in the absence of the der once shows defendant’s negligence. years Twenty-five negligence at 633. that the defendant’s increased the Id. decision, occur, plaintiffs injury Circuit after the Hicks the Fourth risk that 323(a) Appeals Court of reexamined the “substan- Section allows the trier fact language was a possibility” tial of Hicks some determine whether the sub injury, interpreted possibili- causing entitling detail factor in “substantial stantial See, ty” recovery. e.g., “probability”. to a v. be tantamount Scafidi Seiler, 93, (1990); change court that “Hicks no 119 N.J. 574 A.2d 398 concluded made 127, v. requires Humberger, to estab- 215 Mont. 695 the law that Aasheim (1985); 824, proximate preponderance Sharp lish 828 Kaiser Found. P.2d v. Colorado, mal- P.2d the evidence in order to Health Plan 710 1153 City practice Hurley Thompson v. Sun negligence.” (Colo.App.1985); v. United destroys proved contribute to seaman's if the master's omission omission will cause the duty a reason- death. able arises when there is possibility of rescue. reasonable possibility of rescue. cause is i.e. causation is Proximate at 287. 310 F.2d standard, same tested

609 597, Inc., concluded, he court “must decide wheth- Community Hosp., 141 Ariz. 688 testimony established that (1984); Counselman, er Dr. Ostrow’s v. P.2d 605 Roberson (the alleged complained of the act 1006, Kan. P.2d Thorn ‘probably’ or ‘more than not’ diagnosis) 360, CAMC, ton v. 172 W.Va. 305 S.E.2d 316 subsequent disabili- caused Mr. Herskovits’ Bashline, 256, (1983); Hamil v. 481 Pa. ty.” continued: Id. Justice Pearson courts have held A.2d Other determination, In order to make this we duty that Section 323 defines owed “subsequent disabili- first define provider to health care the defendant by Mr. Therein ty” suffered Herskovits. patient, but it no effect on case, possible the crux of it lies See, e.g., standard of of causation. injury “disability” to Mr. to define the Inc., McKellips Francis Saint ways. Herskovits in at least two different 467, (Okla.1987); Ehlinger P.2d 474-5 First, obviously, and most Sipes, 155 Wis.2d N.W.2d might as his death. Herskovits viewed (1990). Still others have utilized Section 323 however, Alternatively, or dis- deciding criterion whether there ability may of Mr. be seen as the reduction go “sufficient evidence of cause to surviving the cancer Herskovits’ chance jury,” inappropriate that it is hold which he from suffered. See, jury e.g., for use as a instruction. Blon Therefore, although issue us is before Hays, 241 del v. Va. S.E.2d causation, of of primarily one resolution (1991). requires identify issue us to the na- that injury In what turned out to be a watershed of to the decedent. Our ture substantially doctrine, conception injury will opinion on the of “loss chance” of analysis. injury deter- our Washington Supreme held in a divided Court If affect Herskovits, to Mr. mined be the death that, 1983 decision on the basis of Section of principles then under the established 323, apportioned damages recovery of should of to permitted “where the estate can show failed prima Dr. was make case. Ostrow facie probable in chance reduction statistical probably, that or more unable state prove but cannot survival show that and/or not, likely than Mr. death was Herskovits’ timely diagnosis [of with and treatment his by negligence. On the defendant’s cancer], lung probably decedent would have contrary, is clear from Dr. Ostrow’s tes- it expectancy.” lived to normal life Herskovits timony proba- that Mr. Herskovits would Sound, Group Coop. Puget Health 99 of bly have died from cancer even with the (1983). 609, 474 Wash.2d 664 P.2d In so by of care defendant. exercise reasonable holding, majority the Herskovits followed the Accordingly, perceive we the death of reasoning Pennsylvania Supreme of case, as Mr. Herskovits in Bashline, 1280, in A.2d Court Hamil 392 court, must the trial unless we we affirm applauded adoption court’s Sec depart that it sub- determine tion 323. stantially require- the traditional from However, concurring opinion in a establishing proximate cause in ments of development type case. luminary to make him a causality hand, “loss of chance” in medical mal- If, view the on the other we decade, chance practice eases over the next Associ- be the reduction Mr. Herskovits’ survival, analysis might our well be rejected the ma- аte Justice Vernon Pearson Dr. testified that Ostrow reasoning constituting jority’s 323 Section different. diagnose cancer December failure departure from an unwarranted established probably substantial reduc- caused a Washington law on causation and offered in- survival. tion in Mr. Herskovits’ analysis a different for the court’s deci- stead not] standard [more Pearson first noted that under sion. Justice proof is met. therefore law, Washington usually “cause in fact must added). (emphasis Id. by testimony, expert medical be established beyond the balance the cases be established After a detailed examination of Herskovits, prinei- Thus, preceded probabilities.” P.2d had decided Id. 664 at 481. pally on the basis of the dictum in though Hicks or chance of cure even the chance was the “increased harm” risk of formulation tak- probability not better than even. The en from pointed Section Justice Pearson long-term survival be reflected in thoughtful to “the subject discussion [on the the amount of awarded for the by] commentator,” a recent citing King, loss of While the chance. here Causation, Valuation and Chance in Person- could not by preponderance of the Injury Involving al Preexisting Torts Condi- evidence that he was denied a cure tions Consequences, and Future 90 Yale L.J. negligence, defendant’s he could show a (1981). Herskovits, 664 P.2d at 486. preponderance deprived he was Justice pointed specifically Pearson 30% chance of cure. following portion King’s influential article: (emphasis origi- Yale L.J. at 1363-1364 part Causation has for the most been nal), Herskovits, quoted part 664 P.2d all-or-nothing proposition. treated as an (Pearson, J., concurring). In the wake Either a loss was caused the defendant decision, of the Herskovits both Justice Pear- Inexplicably, it was not. the all-or- King son and Professor have been extolled nothing approach has been slip allowed to by various courts convinced usefulness analytical its moorings, influencing the lost-ehance-as-injury theory King identification and valuation of losses in See, championed. articulated and Pearson cases involving preexisting conditions and e.g., Ctr., Vegas Perez v. Las Medical consequences. claims for future A (1991); Nev. 805 P.2d 589 Falcon v. Me- ordinarily required prove by should be morial Mich. N.W.2d 44 applicable standard of Louvar, DeBurkarte v. defendant question. caused the loss in (Iowa 1986); Thompson City v. Sun loss, however, What caused a should be a Inc., Community Hosp., 141 Ariz. separate question from what the nature P.2d 605 and extent of the loss are. The distinction It is all-or-nothing approach true that the courts, seems to have ‍​​‌​​‌​​‌‌‌‌‌​​‌‌​‌​​​‌‌‌‌​‌‌​​​‌​​​​‌‌‌​‌​‌​‌​‌‍eluded the with the has highest been retained the courts in

result many respects that lost chances in adopt some states when to asked the “loss of compensated are as either certainties or chance” malpractice doctrine in medical not at all. cases, on hypothesis the that to do otherwise illustrate, To consider the case in which a destroy would proximate traditional the negligently diagnose doctor fails to pa- a jurisdictions cause test. But number of the tient’s cancerous condition until it has be- taking very this course is small. Of the 16 inoperable. come Assume further that majority cases in opinion reject cited as diagnosis even timely patient with a ing “loss of chance” or “increased risk of only would have had 30% chance of theory recovery harm” damages, as a of of recovering from the disease and surviving seven, only fact, actually decide that issue. long over ways term. There are two of Inc., Gooding Hosp. Bldg., See v. Univ. 445 handling such a case. Under the tradition- (Fla.1984); So.2d Mary 1015 Fennell v. S. approach, al not-better-than- 776, (1990); Hosp., land 580 320 Md. A.2d 206 recovering even chance of from cancer Cooper Cincinnati, Charity v. Sisters would compensable not be because it did of of Inc., 242, (1971); 27 272 Ohio St.2d N.E.2d 97 appear not that the Pillsbury-Flood Hosp., v. Portsmouth patient 128 would have survived with 299, (1986); N.H. 512 1126 A.2d Sherer v. damages, any, care. if Recoverable would James, 404, 290 S.C. 351 S.E.2d depend 148 appeared on the extent to which it Hosp., Kramer v. that Lewisville Memorial 858 cancer killed the sooner than (Tex.1993); Manning S.W.2d 397 timely it v. Twin diagnosis would have with treatment, 47, Falls 122 Clinic and Idaho and on the extent to which 830 aggravated P.2d 1185 diagnosis patient’s One additional state su condition, preme supports causing arguably majority such court as additional pain. however, position, approach, only A more tangentially. Clayton rational See (Miss.1985). recovery Thompson, would allow v. the loss of a 475 439 So.2d See

fill op- theory presented with of Campbell, v. 515 So.2d 882 also Ladner so; panel (Miss.1987). Tenth Circuit portunity to do however, no acknowledged, that there were remaining opin- lead cases cited in the point.5 state cases on interpreted re- legitimately cannot to ion action, these half-dozen or contrast ject of In dramatic “loss of chance” as cause cases, overwhelming weight of authori- was not before the so either because issue court, ty contrary position taken it is was not the basis for because or more addition, majority Courts some 80 one of the here. court’s decision.4 In jurisdictions permitted by a speculation involves federal cited cases “increased damages for “loss of chance” or state of New appeals court courts Moreover, many the courts reject harm.”6 “loss of chance” as risk Mexico harm[;] 467, jury increasing [i]f ... Hays, Va. 403 the risk 4. See Blondel v. S.E.2d 340, (in (1991) wrongful reason action based that defendant’s failure exercise death finds malpractice, that "if a he on medical court held care increased the risk of harm able plaintiff’s prevent, may evidence has shown that defen fact it from this find undertook to destroyed any negligence negligence dant's substantial 'probability' was the that defendant’s survival, Milner, possibility then there is damage"); Jeanes v. cause go law) 598, (8th Cir.1970) sufficient evidence of (applying Ark. F.2d (" jury," language but indicated that this should required a case this kind that ’[i]t not Tulin, instruction); jury Grody v. not be used injured party show to a mathematical cer (1976) (wrongful 170 Conn. A.2d every hypothe tainty or to the exclusion of other diag death action based on failure to occurred a result of the sis his allegedly causing suffering nose needless ”); complains' Sharp v. which he survival); premature death not loss chance Plan, Health 710 P.2d Kaiser Found. Emergency Corp., Watson Medical v. Servs. ("[ejven though plaintiffs’ (Colo.App.1985) evi (Ind.App.1989) (dispositive N.E.2d 1191 issue in Sharp that Mrs. had less than dence shows negligence); volved existence or non-existence of attack, suffering a heart her ex 50% (Minn. Tongen, Cornfeldt suffering testimony pert’s chances of her 1980) (“loss theory as a of chance” distinct by 20 to attack were increased heart 25% raised, although say did court in fact to allow a sufficient evidence causation permitted jury speculate "cannot be as to failure jury to whether defendant’s consider diagnosis whether earlier or different treatment Sharp properly a substantial to treat Mrs. cure”); would have resulted in a Walden v. causing injuries”), her on factor in aff’d narrow Jones, (in (Ky.1968) 439 S.W.2d medi Sharp, grounds, Kaiser Found. Health Plan er undiagnosed cal disc, action herniated (Colo.1987); County 741 P.2d 714 Richmond possibility” court held that "bare that fail Operating Hosp. Hosp. Authority v. Dicker Univ. operate paralysis enough ure to was not 548, son, 601, Ga.App. 182 356 S.E.2d 550 cause); v. to establish Horn Nat'l (1987) by ("[pjroximate cause is not eliminated Ass’n., 654, (1942) Hosp. 169 Or. P.2d 455 131 by establishing by expert opinion merely that the (dispositive issue concerned the standard of fifty percent patient chance of had less than a proof in a medical action based on a occurred”); negligence De- had the survival nonfeasance, physician’s rather than misfea Louvar, (Iowa 131, 136 Burkarte v. sance). 1986) (“[wjhen negligent or a defendant’s action person’s effectively a terminated inaction has Lund, (10th Cir.1986). v. 783 F.2d 958 Alfonso survival, it the defen of does not lie in chance conjectures as to the mea dant’s mouth to raise Jordan, 256, e.g., Ala. 302 6. See Waddell v. 293 beyond put sure of the chances that he (1974) 74, ("although diagnosis prompt So.2d 77 realization!;] any possibility there was sub [i]f of might prevented and treatment not have a mas- possibility of and defendant has stantial survival attack, delayed could or sive heart such have it, answerablе”); destroyed v. he is Roberson prevented impeded even attack and terminal 149, 1006, Counselman, 235 Kan. 686 P.2d 160 heart”); damage of v. further States, Abille United ("the (1984) proper treatment failure to obtain 703, (N.D.Cal.1980) F.Supp. (ap- 710 482 dying Roberson's chances of from ("[wjhere increased Mr. law) plying improper diagnostic Alaska mortality rate to a utilized, from at the heart attack 19% techniques enough it is have been rate”); Dept. mortality v. Smith State 25% proper procedures the use of could show that of Health, 815, (La.1988) (”[t]he outcome”); So.2d 821 523 Thomp- have altered unfortunate Inc., only that the decedent had need show City Community Hosp., v. 141 Ariz. son Sun (”[w]e her 597, 608, 605, (1984) was denied to of survival which chance P.2d 616 688 negligence”); Joudrey v. dealing result of the defendant’s with remember ... that we are the limit- Inc., Community Mass.App. Hosp., 32 Nashoba ed class of cases in which defendant undertook 974, 769, (1992) (”[i]n 772 cases protect plaintiff particular 592 N.E.2d from a harm and Ct. events, physician’s negligent negligently interrupted conduct has the chain of thus in which a 612 recently recognized have most theory recovery “loss of chance” aas deliber- have harm, diagnosis caused a possibility avoiding the ultimate and ... cancer, proximate proved by causation can be negligence complained of eliminated this expert evidence which shows ... possibility”) grounds, rev’d on other 531 F.2d improved 'would have had a Cir.), denied, 857, much chance of (3d 1227 156, cert 429 U.S. 97 S.Ct. longer diagnosis or survival life if and treatment Lewis, (1976); Voegeli 50 L.Ed.2d 135 v. 568 meeting accepted standards had of care been 89, (8th Cir.1977) law) F.2d (applying 94 S.D. ”); States, appropriately initiated’ Bell v. United ("[i]n necessary case it was 881, (6th Cir.1988) 854 (applying F.2d 890 Mich prepоnderance of the evidence that Dr. Lewis’ negligence operated substantially to reduce the ("the law) igan district court erred when it inter preted Michigan mandating law as of a Smith, saving leg”); chances of Truan v. 578 probability greater which was 73, (Tenn.1979) ("had 76 the cancer been 50%”); Hosp., see v. also Falcon Memorial 436 dated, treated before that Mrs. Smith’s chances 443, Mich. 462 N.W.2d 44 Aasheim v. of either remission or would have mate 127, 824, Humberger, 215 Mont. 695 P.2d 828 increased”); rially George Hosp., v. 797 LDS P.2d (1985) (”[w]e including feel that ‘loss chance’ 1117, (Utah 1990) (“[a] App. jury 1122 could have causality recognizes within the realities inherent reasonably concluded that the failure of nurs negligence litigation[;] [pleople in medical who notify Lahey Lloyd es to Dr. or Dr. of Mrs. injured[;] seek medical treatment are or diseased George’s change prevented in condition them diagnose properly [failure treat denies the diagnosing, treating, possibly saving from recover[;] opportunity [including op this lost her life and that this failure was a therefore portunity causality gives within the embrace rec proximate cause of worsened her condition and ognition consequence to a real loss of medical death”); 467, ensuing Hayes, v. Blondel 241 Va. failure”); Ctr., Vegas v. Las Medical 107 Perez 340, (1991) (" any 403 S.E.2d 344 ’[i]f there 1, 589, (1991) ("the Nev. 805 P.2d 592 best possibility substantial of survival and the defen supporting recovery rationale in these circum it, ”); destroyed dant has he is answerable’ Her doctrine[;] stances is the loss [u]nder of chance 609, Group Coop, skovits v. Health 99 Wash.2d doctrine, injury to be redressed 474, (”[i]t (1983) necessary 664 P.2d is not but, itself, rather, law is defined as the death for a to introduce evidence to establish as the dеcreased survival caused negligence resulted in the Seiler, malpractice"); medical 119 N.J. Scafidi death, simply increased 93, 398, ("[ejvidence A.2d 405-6 death"); the risk of Snead v. United demonstrating degree within reasonable States, 658, (D.D.C.1984) (”[i]n F.Supp. probability treatment in involving alleged mismanagement cases posed by preexisting creased the risk of harm patient's existing potentially fatal condi question jury condition raises a whether in tion, appropriate test causation is the produc creased risk was a substantial factor in test”). ing result”); factor’ 'substantial Kallenberg the ultimate v. Beth Isra 177, 508, Hosp., el 45 A.D.2d 357 N.Y.S.2d rapid An additional measure trend to- (1974) ("had Kallenberg properly Mrs. been recognition ward of the "loss of chance” doc- choice, treated with indicated medication trine extent is the of the attention it has received pressure kept her blood have could been under legal journals legal publications and other control, might improved and she sufficient years. the last recent One American Law ly, August undergo surgery even after annotation, Reports example, devotes over Stallworth, recovery”); make a Morrison v. pages analysis to an in such (1985) ("[w]e N.C.App. 326 S.E.2d Annotation, Malpractice: cases. See Medical expectancy conclude that life shortened is a com- Damages Measure and Elements Actions pensable damage”); McKellips element of Chance, Based Loss on 81 A.L.R.4th 485 (Okla. Saint Francis 741 P.2d also, (1990). Annotation, Malprac- See Medical 1987) ("where provider deprives a care health a Causality, tice: Chance" “Loss 54 A.L.R.4th 10 significant a of chance of of (1987); Annotation, Recoveryin Death Action treatment, negligently failing provide to medical for Diagnose Failure to Incurable Which Disease professional the health care should not be al Death, (1988); Caused 64 4th A.L.R. 1232 Dam- allege lowed to come in the fact after that Cure, ages Chance 12 Proof Loss Am.Jur. person the result was inevitable that inasmuch as for of of of Facts comment 3d For in addition to put realization”); patient’s beyond possibility the the of majority opinion, the cited Bashline, 256, articles in the see Hamil v. Pa. 481 Andel, ("once Malpractice: Right Medical The Recover to plaintiff 392 A.2d 1288 Survival, Pepper- the Loss Chance 12 demonstrated that defendant's acts or omissions for of of Smith, (1985); another, dine 973 L.Rev. Increased Risk ... have increased the risk of harm to of Sufficiency Harm: A New Standard Evi- such evidence furnishes basis for the fact-finder for of Cases, Malpractice go dence Causation in Medical to further and that find such increased risk of (1985); Roubik, Recovery bringing 65 B.U.L.Rev. 275

was in turn a factor in substantial about Action, harm”); Wrongful Export- the "Loss Chance” in a Death 59 resultant Rosario v. Am. of Lines, Inc., Wolfstone, F.Supp. Recovery Isbrandtsen 1210 Wash.L.Rev. of (E.D.Pa.1975) law) ("[i]t Chance, Damages (applying the Puerto Rico is Loss 1982 Med. of enough plaintiff Q. if the ... shows a substantial Trial Tech. by the total multiplied analysis negligence] to to their causation ately fashioned ordinarily damages concept which are doing damage traditional of amount avoid wrongful death action.” of cause. in a allowed 476). at (quoting McKellips, P.2d Vegas Id. example, in Perez v. Las Medi- For (1991), Ctr., P.2d Nev. cal Similarly, in v. Memorial Falcon prisoner, in a Lopez, who was incarcerаted (1990), a wom- Mich. center, county died a massive detention of an ammonitic fluid as a of an died result hemorrhage, an apparently due to brain expert during An wit- childbirth. embolism Lo- aneurysm congenital arterial defect. the surviv- the ness testified for pez hospital to a after had been transferred percent 37.5 al rate of such condition made complained of headaches. Doctors he pa- line connected an intravenous headaches, diagnose the attempt no the embolism. the onset of tient before jail. A days he was returned after five intravenous plaintiff’s theory was that later, Lopez days experienced seizures few lifesaving to infuse could have been used line wrongful death died. A action was system. circulatory into fluids alleging brought Lopez, on medical behalf However, line in- had been no intravenous A hospital and doctor. malpractice serted. expert, testifying deposition in a on medical majority Michigan Supreme Court A plaintiff, Lopez behalf of the stated doctrine, stat- adopted “loss of chance” chance,” have had a “reasonable ing: greater percent probably than 50 not recognized, we number courts have as A chance, surviving hemorrhage if he would, for a more opportunity of an loss proper care. given had been result, distinguished from the favorable as judgment granted summary The trial court result, compensable in med- as unfavorable defendants, Supreme Court of but the ap- malpractice ical actions. Under reversed, adopting Nevada the “loss damages for the proach, are recoverable doctrine. court stated: chance” although opportuni- opportunity By defining loss of chance even, and thus it is ty lost was less than survival, prepon- traditional rule the unfa- probable more than fully In cases derance is satisfied. or could have been result would vorable plaintiff prevails, which the it can said avoided. proba- the medical more approach, must Under bly not decreased a substantial than more-probable-than-not causa- establish injured chance of survival and that prove, probably must tion. He ultimately severely de- person died was not, oppor- defendant reduced Specifically, to create a bilitated. order avoiding tunity of harm. regarding question of fact causation omitted). (footnotes 52-53 Id. N.W.2d cases, present evi- these show, tending a reasonable dence damages, Falcon court the issue On probability, that some computation of dam- that “[t]he noted providers by health care act or omission recoverable ages would limit chance of survival reduced a substantial chance of recov- only that amount reduced given appropriate medical care. negli- ery actually physician’s theory, adopted, gent conduct. where original). (emphasis at 592 Id. 805 P.2d ap- nothing’ ‘all not result in an should damages, the Nevada court On the issue proach Id. at n. 47. to causation.” concluded: DeBurkarte, 131, plaintiff a Additionally, damages to In the are be dis- against brought malpractice a action preexisting that medical counted to the extent a family negligently failing to physician for the death or her condition contributed tо Expert diagnose lumps as cancerous. Specifically, breast “[t]he serious debilitation. the time testimony that at damages equal to at trial indicated recoverable is amount chances for misdiagnosis, plaintiff’s lost percent [of survival] [due of chance the percent perhaps survival were at least 50 gent conduct. To in hold otherwise would high percent, providers as 80 while at care the time effect allow to evade liabili- they trial ty were zero. Iowa for their Supreme actions or inactions held in in testimony, patients “[f]rom Court that situations which would not the recovered, jury necessarily have probably could find survived but that the defendant significant a in still would have had a chance or caused reduction her chance of survival.” recovery. survival or (emphasis original). Id. at 137-38 in approved recovery damages, court for 741 P.2d at expressed 474. As another court only they that extent resulted the from it, permit recovery a rule of that law does not plaintiffs reduction of the chance of survival. may oppor- for what have been a substantial Id. at 138. tunity permanent injury, to avoid death or essence, “in open declares season on critical- cases, In these and similar the standard of ly injured persons, ill or providers as care ie., proof for probability, causation remains a liability gross- be would free of for even the greater percent, injury than 50 but the malpractice patient only fifty- est if the had redefined as loss of the chance survive or fifty surviving chance of the disease or majority achieve better If outcome. the with even treatment.” Roberson here sincere in its determination to adhere Counselman, at 686 P.2d standard, to the traditional Finally, approach obviously pa- opinion it can do so denying without lead injured in by negligence right tients takes this case to sue simply by their following the puts premium ... party’s on each tortfeasors — lead of the courts that have redefined the willing search for the witness. Human injury, but not have lessened the standard of is, being nature what it and the difference proof of causation. legal between scientific and for tests confusion, “probability” creating often Notably, majority path has deter every expert witness who evaluates sharply mined follow is that of a divided lost 49% chance at there is another who Supreme Texas in Court Kramer v. Lewis estimates it at closer to 51%. (Tex. Hosp. ville Memorial 858 S.W.2d 397 Thompson 1993), City Community Hosp., v. Sun precedent rather than the in the state 141 Ariz. at at 615. overwhelming well P.2d Tennessee as as the majority jurisdictions con other Here, example, plaintiffs produce Moreover, question. adopting sidered in expert timely diag- an with who testifies that reasoning the Texas court’s as the new rule Kilpatrick nosis Sandra had at least a 51 Tennessee, majority does than (or percent recovery long- of frill chance of a merely disregard precedent. its own es It expectancy), er life she will be able to recov- policy protects negligent tablishes very majori- damages er the kind physicians expense patients at who her, ty in ostensibly this ease has denied very have suffered a real their apparent assumption based on their physicians’ hands. As the Oklahoma Su proof will percеnt show she had preme McKellips Court in v. Saint Francis ap- less chance of survival when she first Hosp., Inc. noted: Indeed, peared Bryant’s in Dr. office. those patient

[I]n situations where health care estate of a victimized deceased provider deprives significant would be limited recovery by negligently failing wrongful chance for death treatment, any provide testimony expert the health case in which estab- professional original care should not be an allowed lished chance of of more Hence, allege percent. after the fact come the defendant inevitable, pay percent result was inasmuch as that such a case put person beyond damages, percentage total rather than the possibility damage pro- actually realization. Health care for which he or she was given way viders should responsible. escape benefit There is no uncertainty negli- all-or-nothing approach created their own conclusion that this is diag- to comparative litigation of for failure analytically the amount inconsistent with in an inverse ratio nose cancer will decrease recently adopted Court. fault doctrine this however, then, with Balentine, to it. Until McIntyre v. See pre-existing condition that has been (Tenn.1992). medical contrast, By the “loss of by negligence part on the of exacerbated spurned by majority chance” doctrine able to recover diagnostician should be obviously analytically this is consistent case very injury that has occurred. real damages on com- with the allocation of based injury, key of is definition fault, regardless phy- parative of whether (which is, af- patient’s ultimate condition pegged above or below sician’s all, by the and not in fact cancer ter caused percent proximate in terms of causation. treating physician), by action of the jurisdictions or more The courts the 30 damages directly of attributable terms those recognized the chance” that “loss of .have including negligence, diagnostician’s to permitted doctrine or for “increased and expectancy life and the fear shortened certainly of risk of harm” cannot accused failing In anxiety accompany it. doing the intent to the law so with dismantle distinction, simple majority in make this of medical clearly case has moved Tennessee back have, instead, They recognized the eases. step and not forward. reality difficulty practice of medical and the any certainty predicting with scientific ANDERSON, Justice, concurring and patients life-threatening with which disease dissenting opinion. will and which will not. survive Without agree I with the unanimous conclusion them, crystal guide experts ball to medical plaintiffs are entitled opinions all statistics, percentages, fall on back on bodily injury, including recover five-year ten-year and on rates. survival pain suffering, disability, ex Moreover, it is no coincidence that most of earning penses, capacity and loss major “loss chance” cases involve can- consortium, summary and to that extent cer, which, years ago, a disease left no should be judgment in favor of the defendant today, perhaps survivors. In America half of agree I with the ratio reversed. also basic patients survive, depеnding all on cancer Daughtrey’s dissenting opin nale Justice type signifi- location the disease should be able recov ion and — cantly possible injury its earliest detection and er for of loss of chance —on Indeed, industry fig- proximately treatment. insurance establishes negligence in ac timely show that the defendant’s ures failure to make principles tort traditional diagnosis cordance with of cancer was the second most however, would, I limit causation. why na- frequent reason doctors were sued chance, a substantial loss of tionwide, for the in 1990 and 1991.7 Public health percent, I as at least which would define emphasize early educators detection application princi and I would confine cancer, key curing especially in breast e.g. ple malpractice actions. See to medical Kilpatrick’s. cancer cases such A as Sandra Counselman, 235 Kan. Roberson v. any legal rule her from hope that bars (1984); v. Memorial Falcon P.2d alleged malpractice in the fail- recourse McKel 436 Mich. diagnose ure to her cancer it metasta- before Hosp., 741 P.2d lips v. Francis Saint put seriously out of sized would Tennessee (Okla.1987); Vegas v. Las Medical Perez step legal developments with recent Center, 1, 805 P.2d 589 107 Nev. public country policy. and with sound health Emphasis early on detection cancer will early

undoubtedly intensify as methods Eventually, improve. the level of detection technology may progress point Co., Rosenblum, (Whittle Malpractice the nation's and Marine ‍​​‌​​‌​​‌‌‌‌‌​​‌‌​‌​​​‌‌‌‌​‌‌​​​‌​​​​‌‌‌​‌​‌​‌​‌‍Insurance Di- Paul Fire Solutions Books, 1993), liability largest private at 62. statistics are taken rect insurer. period two-year with St. claims filed in a from

Case Details

Case Name: Kilpatrick v. Bryant

Court Name: Tennessee Supreme Court

Date Published: Dec 22, 1993

Citation: 868 S.W.2d 594

Docket Number: 02S01-9107-CV-00027

Court Abbreviation: Tenn.