Kramer v. Lewisville Memorial Hospital

discovery hearing. and a Yet none of that necessary explains either. As the court two,

in footnote the Estate should have

argued required that it was not to file a because,

separate answer under Texas

the decedent’s enures answer to its benefit.

Failing timely argument, to make this court, in the

Estate waived it the trial appeals

court of this court. Remand

appears designed provide more to the Es- opportunity

tate another to raise this new

objection judgment, obviating any hearing,

need for rather than to allow

McMurrey discovery hearing. further and a reviewing judg-

The standard for default

ments set forth in Craddock v. Sunshine Lines, Inc.,

Bus 134 Tex. (1939), dramatically has been eroded years. See, e.g.,

recent Bank One v. (Tex.1992) (Gonza-

Moody, 830 S.W.2d 81

lez, J., dissenting). requiring Rather than excuse,

a valid accepts court now al- any.

most

Stephen KRAMER, Individually, C. Representative of the Estate of Jen Kramer, Deceased,

nie Roland and as Geoffrey

next friend of Kramer and Kramer,

Lyndsey children, minor Peti

tioners, HOSPITAL,

LEWISVILLE MEMORIAL

Respondent.

No. D-2680.

Supreme Court of Texas.

June 1993.

Rehearing Sept. Overruled

I. Stephen Kramer was the wife of Jennie Geoffrey and Kramer and mother August Lyndsey Kramer. Ms. Eich, gyne- Bruce Kramer Dr. visited cologist, un- experiencing she was because bleeding discharges intermittent usual and after her menstrual days a few before and Eich, observing period. Dr. that her cervix inflamed, diagnosed her a was condition as performed pap a yeast infection. He also microscope a slide made smear and sent Lewisville Memorial from the smear to (the screening. Hospital “Hospital”) for Nightingale, Cytotechnologist Prances director, Hospital’s laboratory screened the no abnormal cells that slide and detected Dr. Bur- might indicate cancer. Richard pathologist Hospi- gess, employed a supervisor, Ms. tal who was Nightingale’s part as of the Hos- then reviewed slide He program. also pital’s quality control for negative found the slide cancer. suffering irregular bleeding, Still from doctor, another Dr. Ms. Kramer consulted Burgess, in November 1985. Dr. Michael Hospi- Burgess not associated with Box, Pauley, A. Les Bruce Michael S. Dr. apparently unrelated to Rich- tal Weisbrod, Dallas, petitioners. for conducting Burgess. After various ard tests, including smear, pap he other not Meeker, Austin, respondent. R. for Peter as normal. diagnosed her condition also bleeding more Ms. became se- Kramer’s OPINION however, vere, and December she PHILLIPS, Justice. hardening Chief in her She detected a cervix. who, in Burgess Dr. Michael returned to principal presented in this The issue developments, concluded spite of these new permits for Texas case is whether nothing further needed to be done. cure in medical lost chance of survival or February, continued following after cases; is, that whether there is irregular bleeding, Ms. Kramer episodes of de liability negligent treatment'that vagina. spot hard in her She detected a avoiding patient’s creases a Burgess, again to Dr. Michael returned in cases death or other conditions diag- performed biopsy who cervical probably the adverse result where nosed her cancer. anyway. hold that such have occurred We Ms. then admitted recovery is authorized the Texas Kramer was Act, exploratory Hospital, she underwent Wrongful where Rem. Death Tex.Civ.PRAC.& 71.004, surgery She returned and should not be in March 1986. 71.002 & Code §§ occasion, in April, Survivorship the on one other Hospital the Texas permitted under 71.021, treatment of hemor- Statute, emergency room &Rem.Code Tex.Civ.Prac. rhaging. took radiation treat- law She then separate common cause or under chemotherapy hospi- at another Accordingly, judg ments and we affirm action. doctors, of other who tal under the care appeals. ment of court The cancer not sued this case. were 46. “Stage III” however, cancer has spread lungs, survival rate. to her she died 80% wall, slightly and has pelvic on October reached the Finally, rate. less than a survival 50% Stephen Kramer, individually, repre- spread “Stage has to other or- IV” cancer estate, sentative of Jennie Kramer’s and as gans, survival and has 0% 5% children, brought next friend of their suit rate. Wrongful under the Death Act and Texas Survivorship against the Statute Dr. Texas Kramers and the experts The for the Eich, Bruce Drs. Richard and Michael Bur- Hospital stage the of Ms. disagreed over gess, Nightingale, Hospi- Ms. Frances the 1985, August Kramer’s cancer in cervical tal, groups professional and other medical Nightingale and Dr. Richard when Ms. physicians and centers of which were Burgess pap smear. The screened the to the members. Pursuant Medical Liabili- experts Kramers’ that while Ms. testified Act, ty Improvement and Insurance Stage Stage I Kramer was either 0 or Tex. (Vernon Supp. 4590i art. time, Stage least III Rev.Civ.Stat. she was at 1993), the Kramers served notice to all diagnosed February in time her cancer was bring intention defendants of their to Hospital experts 1986. Two for con- liability against health care claims each of objective ceded that there was no while except them. All the defendants the Hos- anything that Kramer was evidence Ms. pital settled Kramers trial. with the before 1985, Stage August retrospective I in analysis suggested her cancer could that trial,

Prior to the Kramers amended their Thus, Stage as IV. been as advanced petition facts, allege, under the same the evidence most favorable to the Kram- “significant cause of action for the and Hospital’s ers conduct showed that the was substantial reduction the chance of sav- death, proximate Ms. ing” cause of Kramer’s they Ms. Kramer’s life. As later ex- plained Court, while the evidence most favorable to the argument oral before this any negligence by the Kramers this cause of defendants showed that viewed action as solely upon Hospital percent based common a 0 to 5 wholly had independent Wrongful affecting either Death chance of chances of survival. Survivorship Act or the statute. evidence, At the close of the Kramers trial, At Nightingale Ms. testified that requested questions jury instructions and pap she screened most smear slides at jury, if it would have allowed Hospital’s home instead of at the laborato- Hospital failed to find was the ry, although she did not know whether this death, proximate cause of Ms. Kramer’s was true of Ms. Kramer’s slide. Based on impose liability depriving her of the for slide, her re-examination she admit- had at the time of of survival she ted that her failure to detect abnormal cells August smear. The trial pap in the in judgment. smear was a mistake requested jury court refused all of these expert The opinion Kramers introduced tes- issues. The to find that Ms. jury failed timony Hospital negligent that the was and, Nightingale negligent while it did allowing Nightingale Ms. to screen slides Hospital Burgess find that Dr. and the at home laboratory. rather than negligent, were to find that such it failed negligence Ms. Kram- proximately cause undisputed Kramers also offered ev- verdict, er’s the trial court death. On regarding idence the International Federa- take-nothing judgment in rendered favor tion Gynecology and Obstetrics’ five- Hospital, appeals the court of stage system classification can- cervical affirmed. diagnosed “Stage cer. Cancer 0” is cervix, and, limited to the surface of the if treated,

detected has a five-year 100% II. “Stage spread survival rate. I” cancer has A. cervix, into the tissues of the and has a “Stage II” survival rate. cancer has Under the traditional standard of 95% spread cervix, beyond sufficiency submitting has a of evidence 70% Counselman, 235 Kan. 1006, v. berson jury, plain- case medical v. Baton 149, (1984); Hastings required of a to adduce evidence P.2d 159-60 tiffs are (La. Hosp., probability” 713, or “rea- Rouge Gen. “reasonable 498 So.2d injuries Hosp., probability” their v. Memorial 1986); sonable Falcon one 44, (1990); were caused 443, 52-57 Mich. Yelin, defendants, see, e.g., v. more Ctr., v. Health Wollen DePaul S.W.2d Duff Lenger v. (Tex.1988); 175, Aasheim (en banc); (Mo.1992) 684-86 Physicians’ Hosp., Gen. Humberger, 695 P.2d 215 Mont. Keith, (Tex.1970); Darrell L. 706-07 Medical Vegas Perez Las (1985); Proportional A Modem Loss Chance: (1991); Ctr., Nev. Bay- Texas, Approach Damages Seiler, A.2d 119 N.J. Scafidi (1992), meaning sim- LOR L.Rev. (1990); Kallenberg v. Beth Israel likely not” that ply it is “more than 508, 177, Hosp., 45 A.D.2d 357 N.Y.S.2d the ultimate harm or condition resulted mem., 719, (1974), 37 N.Y.2d 510-11 aff'd Lenger, 455 See negligence. from such (1975); 615, N.E.2d 128 374 N.Y.S.2d 337 BayloR Keith, 44 L.Rev. at Hosp., McKellips Francis v. Saint 741 types negli- 761. As is true other v. 467, (Okla.1987); Hamil 474-77 P.2d cases, proof gence standard of the ultimate Bashline, 1280, 256, Pa. 392 A.2d 481 whether, by is on the causation issue Koulizakis, v. (1978); 229 Brown 1288-89 evidence, preponderance negli- Her 524, 440, (1985); 446 331 Va. S.E.2d gent to be a act or omission is shown Group Cooperative skovits v. Health bringing factor about substantial Sound, 609, Puget 99 Wash.2d 664 P.2d harm and without which the harm would CAMC, v. (1983); Thornton 474, 477-49 See, e.g., v. E- Havner not have occurred. 316, Etc., 360, 324-25 172 W.Va. 305 S.E.2d Mart, 456, (Tex.1992); Z 459 Ehlinger Sipes, 155 Ehlinger by v. (1983); Texas, Inc., v. McClure Allied Stores of 754, (1990); see 1, 454 N.W.2d 759 Wis.2d 901, 903 The effect Hosp., Hadley v. Memorial also Daniels of these standards to bar where (District 749, (D.C.Cir.1977) 566 F.2d 757 negligence deprived the defendant’s Hosp. County Richmond law); Columbia tort or less chance of victim 50% 601, Dickerson, v. Ga.App. 356 Auth. 182 M. See avoiding the ultimate harm. Jim v. 548, (1987); McBride United 550 S.E.2d Perdue, Recovery a Lost Chance States, 72, Cir.1972) (9th (Ha- 462 75 F.2d Gambles, Doctor Survival: When States, law); Shumaker v. United 714 waii Up Puts Who Stakes? 28 So.Tex. (North 154, (M.D.N.C.1988) 164 F.Supp. 37, (1987). Hence, 43-44 where L.Rev. States, v. Morales United law); Carolina preexisting injuries illnesses or have made 269, (D.P.R.1986) n. 3 F.Supp. 642 272 & avoiding patient’s the ultimate Lewis, Voegeli v. (Puerto law); 568 Rico allegedly improbable harm even before the Cir.1977) (South 89, (8th 94 Dakota F.2d i.e., patient negligent conduct occurs— law). impairment anyway— would die suffer causa- application of these traditional hand, eight states have On the other totally recovery, bar principles tion will v. Grody the doctrine. rejected clearly deprived negligence if such has even 1076, Tulin, 443, A.2d 1080 170 365 Conn. avoiding the harm. patient of a Hosp. University Bldg., v. Gooding (1976); (Fla.1984); Inc., 1015, 1019-20 445 So.2d twenty years, a number of Over the last Hosp., v. Clinic & Manning Twin Falls result sought ameliorate this states 47, 51-52, 1185, Inc., 122 Idaho version of the so-called by adopting some (1992); Fennell v. Southern Ma 1189-90 Thompson chance” doctrine. “loss of Ctr., 776, ryland Hosp. Md. 580 A.2d 320 City Community Hosp., 141 Ariz. v. Sun Campbell, Ladner v. (1990); 206, 515 605, (1984); 215 Black 597, 608, 688 P.2d 616 Clayton v. (Miss.1987); 882, 286, So.2d 888-89 Langley, 293 mon v. Ark. 439, (Miss.1985); Louvar, Thompson, 475 So.2d 445 DeBurkarte v. 455, (1987); 457 Hosp., v. Pillsbury-Flood Portsmouth (Iowa 1986); 128 Ro- 131, 137-38 393 N.W.2d

401 299, (1986); Cooper N.H. 512 A.2d 1126 death or juris- v. other ultimate harm. Some 242, Charity, following approach permit Sisters Ohio St.2d dictions (1971); go 272 N.E.2d Sherer v. case to based on evidence James, 148, 150-51 290 S.C. negligently deprived S.E.2d that the defendant (1986); Lund, patient “appreciable” 783 F.2d of a “substantial” or Alfonso (10th Cir.1986) (New law); possibility See, recovery. Mexico of survival or Pavitt, Roberson, 159-60; Cal.App.4th Brown, Bromme v. 7 e.g., 686 P.2d at (1992); Cal.Rptr.2d states, typi- Dumas v. 331 S.E.2d 445-46. Other 1593, 1 Cal.App.3d Cooney, Cal.Rptr.2d cally relying on the Second Restatement of (1991); 323(a),2 Morgenroth Medical Torts allow the case to be sub- Pacific Ctr., Cal.App.3d Cal.Rptr. mitted based on evidence that the defen- (1976); Baker, La Bienic v. 11 dant’s increased the risk of the Conn.App. (1987); A.2d See, e.g., Thompson, Wat- ultimate harm. Emergency 616; Hamil, son v. Corp., Medical Serv. P.2d at 392 A.2d at 1286. (Ind.App.1989); permutation, 532 N.E.2d 1196 n. 2 gener- Under either the court Tongen, ally may impose liability whenever the find- Cornfeldt (Minn.1980)(adhering to “reasonable medi- er of fact determines that the increased cal certainty” expressly standard risk of harm or loss of substantial chance considering case the lost chance where to avoid harm is a factor” in “substantial less); percent 50 Joudrey bringing See, or v. Nashoba about the ultimate harm. Community Hosp., Mass.App.Ct. Roberson, 159-60; e.g., 32 P.2d 686 at Jones 974, 769, (1992)(same). 592 410, N.E.2d 772 In Hosp., 494 Pa. 431 A.2d Montefiore states, 920, at (1981); Thornton, least four other the law is un- 923-24 305 S.E.2d 324-25; clear.1 at Ehlinger, 454 N.W.2d at 759. effect, the increased risk of harm/sub- There are several variations of the loss stantial lost chance is treated as a concur- version, of chance doctrine. One common- ring cause of the ultimate result.3 ly termed the ap- “relaxed causation” proach, simply loosens approach, the traditional stan- Under the relaxed causation evidentiary dard of sufficiency, permitting patient’s injury, ultimate death or itself, causation issue to be resolved not the lost chance continues to be fact finder though even there is no evi- treated as the relevant harm when deter- dence of a probability Hence, reasonable mining proximate that the cause. even defendant’s patient’s caused the may while the lost chance less than be Sharp, essary 1. See Kaiser Found. protection person Health Plan v. 741 for the of the other’s 714, (Colo.1987) (en banc); P.2d compare subject 718 things, liability or to the other for Northern Trust Co. v. Louis A. Weiss Memorial physical resulting harm from his failure to 479, 524, 530, Hosp., Ill.App.3d 143 97 Ill.Dec. perform exercise reasonable care to his un- (1986) (suggesting 493 N.E.2d loss of dertaking, if Subbiah, approach) chance with Russell v. (a) his failure to exercise such care increases 516, 519, Ill.App.3d 102 Ill.Dec. 500 N.E.2d the risk such harm.... (1986) (adhering princi to traditional 323(a) (1965). Restatement of Torts (Second) causation); ples Wiley Montgom compare (6th ery, Cir.1988) (Ken 861 F.2d 146-47 explained: 3.As one court law) tucky Hosp. and Richard v. Adair Found. Assuming jury that determines that Corp., (Ky.App.1978) (sug 566 S.W.2d [negligence] increased the risk of harm from gesting approach) with Walden v. condition, preexisting we use the "substan- Jones, (Ky.App.1968) tial factor” test of causation because of the causation); (adhering principles to traditional inapplicability of ‘but for” causation to cases Smith, compare Truan produced by where the harm is concurrent (Tenn.1979) Adcock, with Boburka v. 979 F.2d causes. The “substantial factor” standard re- (6th Cir.1992) (holding that Tennes quires the to determine whether the devi- approach see law adheres to the traditional ation, preexistent in the context of the condi- causation) Crook, and Alessio v. tion, sufficiently significant was in relation to (Tenn.App.1982) Truan). (distinguishing satisfy requirement the eventual harm to proximate One who undertakes ... to render services cause. recognize (citations Scafidi, omitted). for another which he should as nec- 574 A.2d at 406. (Pear- See, Herskovits, even, in 664 P.2d at 487 e.g., damages full are awarded reasons, plaintiff son, J., had concurring). same manner as if the estab- For the same princi- approach, lished causation under traditional at “separate injury” least ples. See, Kallenberg, e.g., 357 N.Y.S.2d disturbing the traditional theory, avoids at 509-511. because proving standards of plaintiff prevails, it where the cases “[i]n general approach A second can said the medical that conceptualizes chance the lost chance of a ... likely not decreased more than distinct, improved health as a survival or Perez, 805 P.2d at chance of survival.” compensable creating separate a injury, original). See, (emphasis recovery. e.g., cause its of action for Wollen, 52-57; Falcon, at jurisdictions appear to utilize a Still other 684; Perez, 592; at at P.2d ap- hybrid, applying the relaxed causation Herskovits, (Pearson, J., at P.2d limiting damages proach value while concurring). commentator ex- As one Scafidi, 574 A.2d of the lost chance. See plained: 405-08; 741 P.2d at 474-77. McKellips, illustrate, patient To who suf- consider along those jurisdictions, These as a result. fers a heart attack dies separate injury approach, differ follow defendant-physician Assume that they value the lost the manner which misdiagnosed patient's negligently require the of fact to chance. Some finder condition, patient total from the ultimate determine have had survival 40% percentage chance death and the diagnosis timely proper even with through negligent con- Regardless of whether it could be care. multiplied being duct, with the former caused the dece- said that defendant judg- appropriate the latter to ascertain death, dent’s he caused the loss Falcon, See, N.W.2d at e.g., ment. chance, and that interest [would] 476-77, McKellips, 741 P.2d completely right. in own be redressed its (advocating “propor- King, supra, at 1382 Jr., Causation, Joseph King, H. Valua- damages” approach). Other states tional tion, Injury in and Chance Personal directly jury value the chance to allow Involving Torts Preexisting Conditions analysis. open-ended See through a more Consequences, and Future L.J. Yale 138; DeBurkarte, 393 N.W.2d at 1353, in As “relaxed causa- (advocating Perdue, 28 So.Tex.L.Rev. many injury” jurisdictions, “separate tion” approach). “jury valuation” permit recovery only jurisdictions for “sub- “appreciable” or lost chances. stantial”

See, Falcon, at 56. e.g., B. of first presents question This case approach, damages are limit-

Under this impression for The Kramers this Court.4 solely ed to the value of the lost chance. remote, hospital recovery explicitly were 4. Each Texas court that has chances for consid has, any depriving adopting be her of like the court would still liable for ered loss of below, had”); adopt apply might Gen. refused to or it. Kram have Bellaire chance she er, (Tex. Karl v. Minor Emer Campbell, Oaks Hosp., Inc. Clinic, (Tex.App gency refd Civ.App. writ [1st Dist.] . —Hous — Houston (motion denied) writ n.r.e.) (“Even [plaintiffs] ton Dist.] [14th that if it be assumed Deets, rehearing remote, pending); the Hos were chances for ... Crawford (Tex.App. Worth S.W.2d depriving of pital her would be liable for still — Fort denied) (refusing recognize had”); the loss of writ to any might see also Per- chance she have instituting (“Texas a new cause due, clearly chance doctrine because law at 57 So.Tex.L.Rev. legislature of "is better left to the or the recovery."); action D. permits John loss of court”). supreme Annotation, Hodson, Malpractice: "Loss Medical hand, cases, Causality, 54 language two A.L.R.4th the other in Chance" On (1987) upon extensively, (describing Texas law as rely ap the state of which the Kramers pears examination, however, uncertain). Upon closer sympathetic to the doctrine. Valdez Inc., of chance cases. Lyman-Roberts Hosp., are not loss S.W.2d it is clear these chance doctrine (Tex.Civ.App. Corpus of whether the loss of Christ: writ refd The issue — actually applied n.r.e.) ("Even adopted patient’s] or if assumed should [the it be urge permitted under one or both of adopt any us to of three actions are versions (1) sepa- statutory of chance doctrine: these schemes.5 (2) rate re- injury approach; “hybrid” Special Requested The Kramers’ Issues approach laxed causation under Section asked of Ms. and 6 whether 323(a) (Second) the Restatement Nightingale Hospital “proximately or Torts, damages to limited the value of any any in chance of sur- caused reduction chance; (3) “hybrid” lost relaxed might which Kramer vival Jennie approach under the “substantial 10,12, Requested Special had.” Issues analysis. or appreciable chance” The Hos- 14 asked to determine the jury mone- pital reject urges any that we effort tary fairly compensate sum that would Ste- proof change requirements the traditional phen, Lyndsey Kramer Geoffrey, and in cases. medical losses, companion- pecuniary their losses ship anguish and society, and mental attrib- outset, theAt we must determine utable “Jennie Kramer’s chance of permissible whether this doctrine is in Tex survival.” These elements of are where, personal injury as in actions only Wrongful recoverable under case, the victim has died. At common Death Act. & Tex.Civ.Prac. Rem.Code personal a cause of action for Requested Special & 71.002 71.004. Is- §§ did to deceased not survive tort victims’ sue 8 asked to determine the mon- See, e.g., Moreno v. Sterling Drug, heirs. sum, etary Kramer’s on Ms. con- based 787 356 & n. pain, anguish, scious mental Moreover, separate no cause of action lies expenses, fairly compensate the victim’s heirs for their own losses at any any “for chance of reduction surviv- See id. These victim’s death. types may al she have had.” This element of permitted actions are now solely by virtue damage Wrongful Death Act recoverable Kramers and Survivor- ship solely Survivorship Statute. The Kramers’ under loss of chance Statute. then, theory, only can be viable if such 71.021. Tex.Civ.Prac. & Rem.Code Furthermore, infra, suggest prepared raised in either case. what are courts are unless alleged compensate to be references to the loss of chance even those victims dicta; recover, appear pur doctrine both cases who somehow "beat the odds” and port be, apply "injury” traditional standards existence a loss of chance will of causation reality, wholly dependent upon po- and find them to be satisfied whether the the evidence. Valdez, 114-16; Bellaire, consequences S.W.2d tential of the victim's or 638 illness death, injury, short, actually pass. Subsequent such come to argument, S.W.2d at 97-98. to as In oral Corpus Appeals the the to Ms. Kramer Court of true harm remains her Christi vindicated decision, Accordingly, statutory death. respect this beneficiaries view with to its Valdez relegated seeking recovery are under confirming any to of loss chance allusions in dictum, Wrongful Survivorship merely Death Act and Statute. reaffirming that case were and malpractice plaintiffs that medical required are analysis, Consistent with this we have never prove by probability. a reasonable recognized a common law cause of action for Refugio County Hosp., Niemann v. Memorial involving sep consortium in cases death (Tex.App. Corpus 855 S.W.2d Christi - arate from fall under the that which would 1993). Wrongful Reagan Compare Death Act. v. (Tex.1990) Vaughan, S.W.2d 5. The dissent contends that we need not consid (child could recover for loss consortium applicability Wrongful er the of the Death Act by parent's injury); caused and non-fatal Whitt injury because the for which the Miller, (Tex. Kramers seek lesey 1978) v. Kramer, not the death of Ms. (wife redress is but her could recover for loss consortium premise, chance of survival. From by this it injury) caused husband’s non-fatal Cav argues deceased spouse that a tort Parking, victim’s Quality nar v. 549, Control might bring (Tex.1985) (child children common cause of law could recover under damages, Wrongful action to recover loss of companionship consortium for loss of Death Act which, premise, society under its could parent) be viewed as and death of caused arising Schindler, (Tex. the lost from chance. See 858 S.W.2d at Sanchez J., (Hightower, dissenting); 1983) (loss society companionship n. Hersko result cf. vits, (Pearson, ing n. 1 664 P.2d at 487 concur J. from death of child recoverable under Perez, ring); Wrongful Act). see also 805 P.2d at 592-93. As we Death Act, Kramers are not We therefore hold the Wrongful Death lia Under the Wrong- under the Texas entitled to recover bility may predicated only on “an be pecuniary Death Act for their claims death.” Tex. ful that causes an individual’s society, 71.002(b). losses, companionship and losses of Two fea Civ.Prac. &Rem.Code § a result of anguish important im and mental sustained language tures of this deprivation of Ms. Hospital’s negligent of chance theories plications for the loss First, chance of survival. Act Kramer’s less-than-even espouse. that the Kramers appeals did not Accordingly, the court of recovery solely injuries authorizes affirming trial court’s refusal death, err in injuries not that cause cause special is- avoiding requested Kramers’ chance of submit the loss of a less-than-even 10, 12, Hence, Act on its terms does sues death. separate authorize under not Act, Wrongful howev- Death Unlike chance. injury approach to loss of Cf. er, not create a Statute does the Survival n Hetrick, A.2d 309 Md. Weimer Rather, simply it of action. new cause (cause (1987) of action for loss of per- of action for provides that cause “[a] wrongful death not authorized health, reputation, or injury to the sonal action for statute that authorized cause of injured person” an survives person of another”); “causpng] torts the death of in favor injured party “to and death of (cause Wollen, at 685-86 heirs, and es- legal representatives, could not for lost chance of survival action injured person.” tate of Tex.Civ.PRAC. wrongful brought under death Missouri Assuming we were 71.021. & Rem.Code statute); Perez, 805 P.2d at 598 part chance doctrine as adopt the loss of J., (Steffen, dissenting) (“[tjhere is no lati Kramer’s cause of the common Ms. shifting the basis tude the statute for chance, if damages from her lost action for causing death to from conduct existed, under this stat- any survive lessening prospects for surviv conduct Therefore, to determine whether ute. al”). refusing re- appeals erred court of the Kram- the trial court’s denial verse Second, the Act authorizes claims 8, must con- special issue we proposed ers’ actually for actions that cause death. adopt the loss should sider Texas whether statute, construing Legislature if the part of its common chance doctrine as a term, apply its

does not define a we will law. ordinary meaning. Hopkins Spring In Disk, 736 S.W.2d dep. School C. construction, negli Under argu- least five suggests The dissent gent conduct is a cause of harm to another of the loss of if, support it ments in sequence, in a natural and continuous First, given the nature of event, negli doctrine. produces an and without physicians are relationship, doctor-patient not have gent conduct such event would Perez, merely to cure by patients 819 retained Siegler, occurred. Lear Inc. v. possi- cure is injury or when such sep disease Either ble, chances of whatever ap but to maximize injury or relaxed causation arate Falcon, See, patient e.g., a has. recovery for the proaches plaintiff a to recover allow impose To refuse to at 52. estab wrongful death another without fail to physicians negligently liability link when lishing statutorily-required be this open duty this The Kramers effectuate “declare[ ] and death. tween personsf,] critically injured ill or season on interpret us the term would thus have liability providers free of liability that as care would be injuries fasten for “cause” to malpractice if grossest Kramer’s for even probably did not cause Ms. fifty-fifty chance of sur- patient only had plain that the do not believe death. We prop- injury even with viving the disease or permits such a language of the statute Roberson, at 160. Bromme, er treatment.” reading. Cal.Rptr.2d at Cf. Second, rule undermines the traditional 613-18. damages. dispense with plaintiff in To loss allocation and deterrence functions of requirement is to abandon the truth- failing assign the by the tort scheme causes, seeking function of the law. cost of these losses to their tortious see, e.g., King, 90 Yale L.J. at C.J., Falcon, (Riley, dis- at 66 N.W.2d giving the tortfeasor the benefit of uncer- likely not stan- senting). The more than negli- tainty created his or her own arbitrary, irrational dard is thus not some Third, gence. negligence the defendant’s cutting malpractice re- for off benchmark prevents knowing the fact finder from ever coveries, prereq- a fundamental but rather whether victim would have recovered system justice. uisite of an ordered Thus, negligence. of that fun- absence sure, profess to seek To be the Kramers damental fairness dictates that the cost of recovery only for Kramer’s lost Jennie uncertainty imposed that on the should be survival, by viewing the chance of either tortfeasor rather than on its victim. See compensable inju- lost chance as a discrete Fourth, application of tra- id. 1378. limiting damages an ry simply by or principles ditional leads to the re- approximating amount its value. With unfairly arbitrary permitting full results of spect implications for the truth-seek- to its prove any can plaintiffs for who law, however, ing it should function chance, greater-than-even while abso- theory matter not that the Kramers’ lutely barring recovery plaintiffs who recovery damages metaphy- limits some only can show lost chance. 49.9% 50% sical sense to the value of the lost chance. Finally, princi- See id. at 1377. traditional The true harm remains Ms. Kramer’s ulti- ples ignore reality of causation that going to mate death. Unless courts are chances, survival, particularly those of patients the odds” compensate who “beat have value. See id. at 1378. recovery, and make the lost chance full persuaded by any

We are not these proven unless and until the ulti- cannot be arguments. acknowledge We Perez, 805 P.2d at mate harm occurs. See truth, not, searching for the law does Hence, legal responsibility under not, require proof should of an absolute reality doctrine is in as- certainty any of causation or other factual signed 'possibility on the mere that a based always issue. It settles for some lower a cause of the tortfeasor’s Fennell, certainty, beyond threshold of whether ultimate harm. 580 A.2d at may reasonable doubt in criminal clear of chance and 213. That for loss convincing ultimately degree evidence in certain civil matters to some be reduced involving rights, point. constitutional or the more beside the typical probabili- civil burden of reasonable agree Nor do with the Kramers we See, ty. e.g., John William StRong, al„ et adop compels our Restatement Section 339-341, §§ McCoRmick on Evidence tion of the loss of chance doctrine. While (4th 1992). ed. Below reasonable Texas, is the law in see Colo this section however, probability, we do not believe Taylor, 544 S.W.2d Savings nial Ass’n v. explana- a sufficient number of alternative (Tex.1976), not deter it does hypotheses tions and cause standard suggest appropriate mine or permit judicial harm are eliminated to Sherer, 351 S.E.2d at of causation. See responsibility. determination of As ex- Summer, Ill.App.3d Curry v. plained by Riley then Chief Justice 365, 371, 483 N.E.2d at 717 91 Ill.Dec. Michigan Supreme Court: (1985); 119- Taylor, 544 S.W.2d at be, Imperfect may legal system as it our (discussing as it bore Section

attempts to ascertain facts to arrive at upon duty). only exception we have integrity protect the truth. To the of longstanding causation recognized to our goal, degree that there must be some of principles the inextricable combi is where certainty regarding to joint causation before of tortfeasors combines nation jury may determine as fact that a ... cause harm in a manner where individual fixed. Lan plaintiffs responsibility defendant did cause the cannot be See Disposal compensate and should therefore the ders v. East Texas Salt Water 406 Co., business. tablishing profits for a new 734 In lost Indus., Heine, situations, Holt Inc. liability is See Atherton

these fastened the judicial (Tex.1992); after determination that Southwest by injuries were caused some Owen, claimant’s Battery Corp. v. one, proof responsibility of that is im but with no (1938). Only a business possible. clearly are distin Such cases foreclosed from chance of success would be guishable the preponder from those where indistinguishability recovery. The is some suggests ance the evidence that no of the by fact that one of cases shown the person known was at fault. rely involved not upon which Kramers the Furthermore, assuming adopt we the malpractice, purely economic medical but in the loss doctrine context of Ry. of chance City M. & O. Co. See Kansas losses. action, malpractice this it is doubt- Bell, (Tex.Civ.App S.W. . —Amar any principled way ful there is we that 1917, writ).7 nothing unique see illo no We application to ac- prevent could its similar healing the which should make about arts If, involving professions.6 for tions other possi responsible for practitioners more its disgruntled or liti- example, a unsuccessful probable consequences any than ble but not gant he or had a less loses a case that she See, e.g., Gooding, negligent other actor. winning, of is percent than 50 but 445 So.2d at 1019-20. testimony expert that his or able to adduce Finally, reject the notion the we lawyer negligently reduced this chance loss of chance enhanced deterrence of the litigant degree, some the would be able justify as to approach might so valuable be pursue malpractice for a cause of action concepts of scrapping causa- our traditional under loss of chance doctrine. the If the sole value to tion. deterrence were J., Perez, 805 P.2d at 599 (Steffen, n. 3 dispense could be served tort we Dumas, Cal.Rptr.2d dissenting); altogether the notion of Pappas, but Daugert see 104 Wash.2d damages award on the basis (1985) (en banc). 704 P.2d Stephen Shavell, alone. Economic Likewise, logic Cf. Analysis 5.1.5, at 108 Law long Accident upend § our settled rules doctrine would (1987). requiring degree certainty in es- some damages ascertaining result- "extrapolating for the amount 6. The dissent criticizes us ing right is might of a not an be under different circum- from the violation what results recovery. insuperable The presented in stances" than those the incident obstacle J., (Hightower, nothing, might might or it case. S.W.2d at 410 n. be little or worth worth, circumstances, considering dissenting). When whether the full be under some doctrine, reject legal adopt premium be we would offered for best amount of the if we did plaintiff remiss in our duties not take into towas be a of the class in which consequences probable deci- account the of our competitor_ to all such mat- as [E]vidence adopt the of chance sion. If we were to loss probability ters as would tend to show context, one doctrine in the medical plaintiff be successful in the that the would ,.. consequence likely expansion be its admissible, such would competition it be would into areas of the law. other good jury sense of the would be left trying the value to determine case Bell, shipped hogs competition. plaintiffs a farmer several via in the chances Bell, however, firm to Fort Worth for a livestock defendant cited has never been for this Id. shipment delayed for sev- show. When the any proposition by over, Texas court. More other hogs weight, hurting days, farm- eral jurisdictions all have denied but a few |300 winning prize. er's first His contests, chances involving recovery in cases similar second, hogs ultimately garnering finished $75. plaintiffs chances of ever the reason damages $225 The recovered on the the- farmer receiving anticipated are benefits insuffi ory deprived prize by of first that he was See, Longo, ciently e.g., Youst v. certain. reversing delay. the trial other While court on 300-01, Cal.Rptr. Cal.3d grounds, explained plaintiff the court that the (1987); W. Page Keeton, al., et Prosser of action for could state a cause Torts, and Keeton on the Law winning of the chance of the show. writ case To extent that a no from Bell, assign S.W. at 323. might among argued placing Texas as explained: The court chance. value to that appear recog jurisdictions the handful legally compen- nize chances to win contests difficult to It true that it is determine chance, interests, it. difficulty expressly disavow ordinarily sable we value of trial, trial to reasons, adopt yet the Kramers waited until For all of these we do not significantly, objections. their More part of the raise the loss of chance doctrine as actually Drs. Leonard the Kramers called Therefore, common of Texas. law during by in chief Burrows their case appeals affirming court of did not err in depositions introducing portions of their overruling the trial court’s of the Kramers’ Hospital re Only evidence. when the into 3, 6, proposed special issues and 8. during testify its called these witnesses III. object. finally Kramers case in chief did the Gawlik, Ebeling proceed appellant’s to consider other We (Tex.Civ.App. no [1st Dist.] argue assignments of error. The Kramers — Houston writ) (trial its discretion in court abused excluded that the trial court should have pleadings for failure to striking plaintiff’s witnesses, testimony of three defense verify supplemental interrogatory answers Leonard, Burrows, H. Drs. J. Sloan John defendant did not raise defect earlier where Bagwell, Hospital and John C. because the III, proceedings); in William V. DoRSANEO properly verify supplemental did not Litigation 91.06[3], at 91-16 Texas Guide interrogatories in which those answers to to 91-17 sup first identified. The witnesses were Finally, challenge the Kramers the ad- plemental answers were verified based on missibility testimony by Dr. belief,” of certain “knowledge mere while Texas “experiment” Leonard that an informal 168(5) requires Rule of Civil Procedure cytotechnologists three demonstrated interrogatories original answers to to be Nightingale’s that Frances failure to detect verified under oath. See Tex.R.Civ.P. screening cells when Ms. Kram- abnormal 168(5). requirements held We have similar negligent. not pap er’s smear slide was upon not to be satisfied verification jury ultimately agreed with Dr. While the See, e.g., “information and belief.” Burke failing Nightingale in to find Ms. Leonard (Tex. Satterfield, negligent, acts were one of three 1975). However, 166b(6), Rule which im possible Hospital’s vicarious bases poses duty supplement discovery seen, liability; found as we have responses, specific contains no verification negligent permit- in Hospital that the was 166b(6). requirement. See Tex.R.Civ.P. ting Nightingale Ms. to screen slides Thus, appeals at least two courts of Burgess negligent Dr. home and held interrogatory that where the initial failing diagnose when he cancer responses properly verified, were Rule Hence, screened Kramer’s slide. even Ms. 166b(6) require does additional verifica in fact err assuming that the trial court did tion, Blevins, see Circle Y Yoakum v. testimony, it admitting particular (Tex.App. S.W.2d — Texarkana such a denial of the Kramers’ would not be denied); Kinder, writ Jones v. rights the rendi- as was calculated to cause (Tex.App. S.W.2d — Amarillo improper judgment. tion of an Tex. writ), others, no including while two the R.App.P. 81(b)(1). below, court have held that a trial court did judgment appeals the court of The refusing not abuse its discretion in to ex affirmed. clude witnesses as a sanction for failure to verify supplemental discovery response. HIGHTOWER, J., Dissenting Opinion Kramer, 831 S.W.2d at State GAMMAGE, joined by JJ. DOGGETT Munday Enterprises, 824 ( HIGHTOWER, Justice, dissenting. Tex.App. pending). writ — Austin join major- Because the fails to Court 166b(6) Even if Rule does fact ity of other states that have addressed this verification, require additional the Kramers injured party issue and allow an to recover complaint they might waived whatever for loss of chance in medical concerning have had the manner which actions, I dissent. supplemental answers were verified. Hospital supplemental concedes, served its an As the Court at least sixteen nothing” swers on Kramers two months before states “all or have abandoned its 408 who damaged by negligence medical

approach in favor of some version advo- arbitrary standard these cannot meet of chance doctrine.1 While loss Under the Court’s the Court. applied not all the doctrine cated courts have plaintiff can establish approach, of if a way, they permit type same some deprived of a negligently recovery are she was individuals whose lives law); (District (D.C.Cir.1977) history of Columbia of loss of chance doctrine 757 1. The Dickerson, general acceptance. County Hosp. 182 its Auth. v. shows the trend towards Richmond 548, recognized 601, (1987); Ga.App. first in the While the doctrine was S.E.2d 550 356 see, cases, States, 72, (9th context maritime "man overboard” F.2d 75 v. United 462 McBride Carriers, Inc., e.g., (Hawaii law); v. Nat’l Bulk 310 Cir.1972) Gardner 284, United Shumaker v. (4th Cir.1962), sign 154, States, the first (M.D.N.C.1988) F.2d 287 F.Supp. 714 164 might applied States, the doctrine (North law); v. United Carolina Morales United context came in Hicks v. 269, (Puerto (D.P.R.1986) F.Supp. 272 & n. 3 642 States, ("If (4th Cir.1966) was F.2d 626 there 368 Lewis, 89, (8th law); Voegeli F.2d 94 Rico v. 568 possibility any and the substantial of survival Cir.1977) (South law). Grody v. But see Dakota it, answerable”); destroyed is defendant has he 443, 1076, Tulin, 1080 A.2d 170 Conn. 365 Hosp., Memorial v. Whittaker (Conn. Bldg., 1976); University Whitfield Gooding Hosp. v. 563, (Va.1969). 169 S.E.2d 569 1015, Inc., (Fla.1984); Man- So.2d 1019-20 445 courts, however, State were slow abandon Inc., Hosp., ning 122 Falls Clinic & v. Twin nothing" approach "all until the land- 51-52, 1185, 47, (1992); P.2d 1189-90 Idaho 830 Group Coop., v. mark case of Herskovits Health Ctr., Maryland Hosp. 320 Fennell Southern v. 609, (1983), P.2d 474 in which 99 Wash.2d 664 206, 776, (1990); v. A.2d Ladner Md. 580 215 Washington Supreme first Court became the 882, (Miss.1987); Campbell, 515 So.2d 888-89 expressly supreme to embrace the state court 439, (Miss. Clayton Thompson, v. 475 So.2d 445 concept involving loss in a case chance 1985); Pillsbury-Flood Hosp., 128 v. Portsmouth percent of survival. of less than a 50 chance 299, (1986); Cooper Sis A.2d 1126 v. N.H. 512 resulted that case the defendants' 242, Charity, 272 27 Ohio St.2d ters of diagnosis delay a six-month correct 97, James, (1971); S.C. Sherer v. 290 N.E.2d 103 cancer; lung over the course of decedent’s 404, 148, (1986); also see 351 S.E.2d 150-51 five-year the decedent’s chance six months Cir.1986) Lund, (10th F.2d v. 783 958 Alfonso dropped percent percent. 39 to 25 survival from Pavitt, (New law); Cal.App. v. 5 Mexico Bromme P.2d court that this loss of 664 at 475. The held 608, 1487, (1992); Du- Cal.Rptr.2d 613-18 4th 7 percent an additional 14 survival 1593, Cooney, Cal.App.3d Cal. v. 1 mas 235 proxi- sufficient to warrant submission (1991); Morgenroth Medi- Rptr.2d v. 584 Pacific jury. mate cause issue to the 664 P.2d at 681, 521, Ctr., Cal.App.3d Cal.Rptr. 126 cal 54 following adopted courts have some form Baker, (1976); Conn.App. 11 v. 688-89 La Bienic Thompson v. loss of chance: 199, (1987); Medical A.2d 1341 Watson v. 526 608, 597, City Community Hosp., 141 Ariz. Sun 1191, n. Emergency Corp., 532 1196 Serv. N.E.2d 605, (1984); Langley, v. 688 P.2d 616 Blackmon Tongen, 295 (Ind.App.1989); v. 2 Comfeldt 455, 286, (1987); 737 457 De- 293 Ark. S.W.2d 638, (Minn.1980); Joudrey Nasho 640 v. N.W.2d 131, Louvar, 137-38 Burkarte v. 393 N.W.2d 974, Inc., Mass.App.Ct. Community Hosp., ba 32 Counselman, (Iowa 1986); Kan. Roberson v. 235 769, 592 N.E.2d 772 1006, 149, (1984); Hastings v. P.2d 159-60 686 states, the law is unclear. In at four other least 713, Rouge Hosp., 720 Baton Gen. 498 So.2d Sharp, 741 Health Plan v. See Kaiser Found. (La.1986); Hosp., Falcon 436 Mich. v. Memorial 714, (Colo.1987); compare Northern 718 P.2d 443, 44, (1990); v. Wollen 462 N.W.2d 52-57 Hosp., 143 v. Louis A. Weiss Memorial Trust Co. Ctr., 681, (Mo. DePaul S.W.2d 684-86 Health 828 11, 6, 479, 524, Ill.App.3d N.E.2d 97 Ill.Dec. 493 (en 1992) banc); Humberger, 695 Aasheim v. 6, (1986) (suggesting N.E.2d 12 493 824, (Mont.1985); Vegas v. Las P.2d 828 Perez Subbiah, 149 approach) v. with Russell 1, 589, Ctr., 107 Nev. 592 Medical 519, 268, 516, Ill.App.3d 500 N.E.2d 102 Ill.Dec. 93, Seiler, (1991); v. 119 NJ. A.2d 574 Scafidi 138, princi- (1986) (adhering traditional 141 398, (1990); Kallenberg v. Israel 405-08 Beth causation); Montgom- Wiley ples compare v. 508, 177, Hosp., 357 N.Y.S.2d 510-11 45 A.D.2d (Ken- Cir.1988) 145, (6th ery, 861 F.2d 146-47 mem., 719, (1974), 374 N.Y.2d N.Y.S.2d aff'd tucky law) Hosp. Found. v. and Richard Adair 615, (1975); McKellips v. Saint 337 N.E.2d 128 (sug 791, (Ky.App.1978) Corp., 467, (Okla.1987); Hosp., 741 Francis P.2d 474-77 v. gesting approach) with Walden 1280, Bashline, 256, 481 Pa. 392 A.2d Hamil v. 571, Jones, (Ky.App.1968) Koulizakis, (1978); v. 229 Va. 1288-89 Brown causation); principles of (adhering 524, 440, (1985); to traditional v. Herskovits 331 S.E.2d Smith, 73, 76 Sound, compare Truan v. Puget Group Coop. 99 Wash.2d Health Adcock, (Tenn.1979) F.2d (1983); with Boburka Thornton v. P.2d Cir.1992) (6th (holding CAMC, that Tennes- Etc., S.E.2d 324- 172 W.Va. approach the traditional (1983); Ehlinger Ehlinger see law adheres to Sipes, Crook, causation) (1990); and Alessio also Wis.2d see Truan). (Tenn.App.1982) (distinguishing Hadley Hosp., 566 F.2d Daniels v. Memorial nothing” approach “all or Finally, the avoiding the greater-than-even chance of a a chance of concept that contrary can she recover to the death or condition ultimate outcome, in legally compensable damages resulting from that is a all future benefit only of some ac if she can the loss Texas court has show least one terest. At chance, nothing. recover smaller she can a that “the chance which notion cepted the Keith, See, e.g., Darrell L. Loss Chance: prize a being awarded competitor has of of Approach to Proportional A Modern value, and may of right which be ... is a BayloR Texas, Damages destroy L.Rev. impairing or wrongfully that one sense. just This does not make (1992). there ought to held liable ing right be such the Kan- nothing” approach, as This “all or M. & O. damages.” City, Kansas for in out, effectively pointed Supreme sas Court (Tex.Civ. Bell, v. 197 S.W. Ry, critically ill or [Djeclares open season on writ). Logically, no App. — Amarillo providers care would injured persons of a apply should to the loss the same rule malpractice grossest the free of even be loss applies harm as chance to avoid only fifty-fifty had a chance patient if the Joseph acquire a benefit. of a chance to injury surviving the disease or even Causation, Valuation, Jr., King, ra- treatment. Under such proper Injury Torts Involv in Personal Chance tionale, society segment often least and Future ing Preexisting Conditions independent judgment able to exercise 1353, 1378 90 Yale L.J. Consequences, mercy profes- of those would be at the (1981). recognized cause case The Bell rely life- sionals on whom it must for hog enter a action for a lost chance to saving health care. Texas law has allowed competition. Since Counselman, 235 Kan. Roberson chance, surely it recovery this lost for (1984). rights to a woman’s should accord similar nothing” approach further The “all or cancer. surviving cervical lost chance of alloca- undermines the deterrence and loss recognizes Unfortunately, while Court given tion functions of tort law. While inconsistency, it chooses to lower this negligent deprivation case the of a less hogs than to raise protection for rather may than the cause in even chance humans. protection for death, ultimate fact illness “separate injury” ver- adopt I would cases, many negli- the defendant’s such doctrine, under sion of the gence statistically causes demonstrable compensated would harm to be which the nothing approach losses. The all or thus recovery, rath- the chance of be the loss of fails to allocate the cost of these losses to injury or death which ultimate- er than the Perdue, their tortious causes. Jim Recov- words, I believe ly ensues. other ery Lost When Chance Survival: for is the loss of chance harm to be redressed Gambles, Up the the Doctor Puts Who small, survival, instead however Stakes, Ad- S. Tex.L.Rev. harm position Court’s gives ditionally, nothing approach the all or the ultimate death of redressed is can be particular class of defendants the ben- Thus, plain- patient.2 a loss of uncertainty created their own efit of an familiar prove tiff would have negligence. Because of the defendant’s probability of reasonable standard negligence, it can never be known whether negligence caused the that the defendant’s plaintiff would have recovered his improved health. negligence. of the chance of in the of that loss health absence fall ing separate that which would Properly viewing death from the harm caused as the death, patient’s Wrongful than the it is of chance rather unnecessary Death Act. 858 the Texas under analyze applicability of the However, the Court mis- n. 5. Wrongful law Texas Death Act. Texas common injury in this to be redressed characterizes recognizes negli- for loss of consortium actions causing the loss of consortium case. parent-child gent injury to the husband-wife or death but the victim's loss is not the victim’s Miller, relationship. Whittlesey v. Therefore, spouse a victim’s chance of survival. (Tex.1978); Vaughn, Reagan S.W.2d 665 for loss of consor- children could recover agree I with the Court’s S.W.2d 463 contention that there is no common law damages flowing from the victim’s loss tium cause chance. for loss of consortium in cases involv- of action Having adopted ap- the loss of chance courts have limited the doctrine even fur- ther. McKellips Francis proach malpractice Saint to causation medical (Okla.1987)(“a Hasp., 741 P.2d cases, adopt jury I valuation type limited of medical case damages.3 approach determining This duty imposed where breached was one approach leaves the assessment of lost prevent type patient harm which the discretion of the ultimately sustains and in- because of the plaintiffs on evidence of the “based plaintiff herent nature of such a case a opportunity or survival produce unable evidence pertinent factors and individual sufficient to meet the traditional rule of plaintiffs King, circumstances.”4 90 Yale causation”); Thompson City v. Sun Com- approach, at 1378. jury L.J. Under this 597, 608, munity Hosp., Ariz. may physical consider such factors as the (1984)(“this rule fits in those pain anguish accompa- and mental traditionally situations where the courts health, ny improved the lost chance of juries loosely to deal more allowed physical well as other losses and conse- duty with causation—the cases where the quential damages, including medical costs. imposed prevent breached was one Perdue, 28 S. Tex.L.Rev. at 62. While a sustained”). type of harm defendant in a lost chance case should no case, jury In this should have had the entirety plain- more for the be liable opportunity negli- to determine whether pain suffering expense tiffs or medical diag- gence physicians failing damages adjudicated than a defendant com- deprived nose Ms. Kramer’s cervical cancer paratively solely negligent but not an sum, her of a chance of I survival.5 case, ordinary juries very capable tort are join majority of other states that weighing these considerations deter- an have addressed this issue and allow mining damages the amount of in these party injured to recover for loss of chance. cases. so, respect- I Because the Court fails to do fully dissent. Finally, adoption of the loss of chance doctrine would not lead to wholesale GAMMAGE,JJ., join DOGGETT and changes in all areas of The law. State of this dissent. Washington, example, reject- explicitly application ed the of the loss of chance malpractice

doctrine outside of medical Daugert Pappas,

cases.

Wash.2d 704 P.2d 600 Other against calculating percentage multiplier 3.There are two methods of the val- chance lost as a chance, “proportional damage" ue of a lost damages lead much the total suffered will approach "jury approach. and the valuation" where the chance lost smaller recoveries Keith, Baylor L.Rev. at 797-99. Under small. proportional damage approach, the fact- plaintiffs original finder determines the chance Bell, Ry. City, S.W. 4. In Kansas M. & O. improved plaintiffs health and the writ) (Tex.Civ.App. no — Amarillo negligence, after defendant's as well as the good the court left it “to the sense of the ordinarily total sum of which are re- trying the case to determine the value of percentage coverable. The reduction caused competition.” plaintiffs S.W. chance in the multiplied by the defendant damages is then the total at 323. damages. to determine the actual I agree proportional damage with critics of the 5. The Court should address the controversies approach damage it reduces the assessment extrapolating before it instead what results "computer-like” to a calculation for the court to might be under different circumstances. I be- Perdue, perform. See 28 So. Tex.L.Rev. at 62- lieve that there should be a cause of action for loss of chance for medical actions. proportional damage approach places an presented question When the Court is plaintiffs inherent disincentive on who have lost of whether there should be loss of only very slight recovery, chances of or who actions, legal malpractice only very cause of action for I have suffered small reductions in improved ready their chances of health. Use of the will be to answer it.

Case Details

Case Name: Kramer v. Lewisville Memorial Hospital

Court Name: Texas Supreme Court

Date Published: Sep 10, 1993

Citation: 858 S.W.2d 397

Docket Number: D-2680

Court Abbreviation: Tex.