*1 Special PEREZ, BERTHA Administratrix of the Estate of LOPEZ, PEREZ, MARCO and BERTHA Natural LOPEZ, and Guardian of ARIANNY CELESTE Mother CENTER, Appellant, v. LAS VEGAS MEDICAL DR. Respondents. GREGORY, No. 19905 February 805 P.2d 589 Garcia,

Eva Vegas, Appellant. Las Gould, Mortensen, *2 Alverson, Bryan K. Las Taylor & Vegas, Respondents.

OPINION By Court, Rose, J.: summary judgment against entered from a appeal

This is Perez) death action. (hereinafter, wrongful Ms. appellant could not prove held that Ms. Perez The district court cause care provider of the health alleged negligence death, have died probably would because decedent anyway due to his serious medical condition. We adopt “loss of chance” doctrine for medical malpractice cases, and under Perez genuine that doctrine Ms. raised issues of material fact district court. we reverse the Accordingly, grant summary judgment and remand this case for further proceedings.

FACTS facts submitted pertinent parties connection with respondents’ motion for summary judgment as follows. On 15, 1985, April Lopez, Marco at the Clark prisoner County Center, Detention died of a massive brain due hemorrhage, apparently aneurysm to an or a defect in an congenital artery. had been Lopez detained and incarcerated on April 1985. later, ill, days

Two after he he complained that was Lopez was Center, taken to the Vegas Las Medical which was under contract 5-9, to treat prisoners from the detention center. From April was confined in the medical Lopez During ward. this time physi- cians made no attempt diagnose persistent headaches of *3 which Lopez was was returned complaining. Lopez jail. to On 15, April by was discovered in his cell a nurse be Lopez having to seizures. Although duty the Dr. physician, Gregory, notified seizures, of the no examination telephone or treatment other than administration of valium and phenobarbital was Mr. given later, A few hours Mr. Lopez. Lopez was found dead in his cell. death, lawsuit, Based on this Ms. Perez the brought present alleging wrongful death due to on the negligence part of the Tiholiz, medical Dr. responsible providers. general a practitioner from Angeles, Los testified in a on behalf deposition of Ms. Perez. Dr. Tiholiz stated that would have had a Lopez “reason- able chance” of the if he surviving hemorrhage had been given admitted, however, and medical care. Dr. prompt proper Tiholiz that Lopez greater did not have a than probably fifty percent the even surviving hemorrhage, given medical Sabo, care. a Additionally, Carolyn professor of at the nursing that, University of Nevada Las testified in Vegas, deposition if care and given proper diagnosis, “might” have Lopez however, lived. An on behalf of the expert respondents, sug- that Mr. gested surviving chances of such a Lopez’ hemorrhage would be very slight.

Respondents summary judgment against moved for Ms. Perez on the health care could ground any negligence providers death, not have been the of Lopez’ cause since Lopez anyway would have died due to his serious probably above, the condition. Based on the evidence stated district court 4 Ms. Perez respondents. in favor summary judgment

entered summary judgment. granting the order appeals DISCUSSION LEGAL is whether the district presented appeal this question summary judg- motion for by granting respondents’ court erred claim mal- wrongful alleging ment on death appellant’s the “Summary only is when judgment appropriate practice. law, no moving judgment is entitled to as matter of and party trial;” fact remains for genuine properly sup- issue material allegations opposing summary judg- ported party factual true. v. Grand 105 accepted Baby Corp., ment must be as Wiltsie 432, 291, 292, (1989). Additionally, Nev. 774 P.2d 433 documentary evidence must be construed in the pleadings is most favorable to the whom the light party against which Mullis v. motion for is directed. Nevada summary judgment Bank, 510, 533, 512, (1982). National 98 Nev. 654 P.2d to on merits if Litigants are not be of a trial there deprived facts. slightest operative doubt Id. question respondents’ First we address the entitlement as a matter of law. Ms. Perez sued on a judgment negligence theory. theory, generally on a prevail negligence plaintiff To (1) a duty must show that: the defendant had to exercise due care (2) duty; (3) towards the defendant breached plaintiff; (4) actual of the injury; breach was an cause the breach plaintiff’s (5) was the cause of the proximate injury; Foundation, Inc., v. damage. Synanon suffered Beauchene 1979). In order establish Cal.Rptr. (Cal.Ct.App. law, judgment entitlement to as matter of must respondents one the above of the negate plaintiff’s at least five elements case. *4 failed, appeal on this is whether Ms. Perez disputed issue causation, law, a establish the existence of actual

as matter of i.e., actually medical alleged malpractice that the caused rule in general harm of. As medical complained malpractice cases, alleged negligence must that the prove the plaintiff (rule injury proving than not caused ultimate probably Miller, evidence). v. See Orcutt by preponderance causation 408, 411-12, (1979). Nev. P.2d Respondents 95 595 1193 Mr. argue probably that the evidence shows that would Lopez to his condi- anyway preexisting physical have died due serious Therefore, contend, respondents only tion. medi- ailment, cal medical can be alleged malpractice, not the

5 death. Lopez’ cause of preponderant, probable, considered cannot, as a matter Ms. Perez short, contend that respondents In according law, of actual causation the element establish requirement. preponderance traditional argu- by respondents’ presented first impression The issue of proof for requirement preponderance whether the ment is cases malpractice in medical recovery to bar operates causation chance that the greater patient’s fifty percent is a where there e., (i. has where the caused the death ailment underlying preexist- due to a serious chance of survival or lower fifty-fifty down on many coming are cases There ing problem). Annotation, Malpractice: Medical See of this question. both sides (1987). Applying A.L.R.4th 10 Causality, 54 Chance” “Loss of some courts strictly, requirement preponderance traditional chances of or lower fifty-fifty with that plaintiffs have held demonstrate ailment cannot original to their due survival See, e.g., death. cause of the was the actual malpractice Inc., (Fla. 445 So.2d 1015 University Hosp. Bldg., v. Gooding prepon- relaxed the traditional courts have 1984). other Several recovery allow limited causation to requirement derance See, Francis v. Saint e.g., McKellips circumstances. under these 1987); v. Inc., (Okl. Group Herskovits P.2d 467 Hosp., (Wash. 1983). 664 P.2d 474 Co-op., Health which recov- permits line of cases large We conclude There the better view. represents these circumstances ery under preponderance against applying arguments many good in cases such as this. See strictly recovery to bar of causation rule Herskovits, J., (Pearson, concur- P.2d at 486-87 especially, Valuation, Causation, Per- and Chance in ring) (quoting King, Future Conditions and Preexisting Involving Torts Injury sonal (1981)). argu- Of the various L.J. 1353 Yale Consequences, following is urged by respondents, against position ments would bar position the respondents’ most fundamental: many potentially of the survivors in tort on behalf recovery the health care pro- blatant no matter how terminal patients, or other a physician Through negligence, negligence. vider’s chances of survival a patient’s could reduce provider health care to, yet percent, ten example, fifty percent as high from position simply law of tort. This in the remain unanswerable explains: court McKellips As the untenable. the benefit of given not be should

Health care providers conduct. To hold negligent created their own uncertainty to evade care providers effect allow would in otherwise in situations or inactions actions for their liability *5 6 or necessarily have survived would not

in which patients recovered, chance of sur- significant would have a but still recovery. or vival position The of the disadvantages P.2d at 474.

McKellips, 741 more certain and more severe than are both urged by respondents today. Additionally, it adopt of the we any disadvantages position cause of action will lie absent some to recall that no important is provider. the health care negligence by instance of various ration- adopted courts have McKellips, As discussed in result dis- unjustified just to avoid the harsh ales in order recovery best rationale supporting We conclude that the cussed. the “loss of chance” doctrine. Under in these circumstances is doctrine, the law is not defined by to be redressed injury this but, rather, itself, as the decreased chance of survival as the death Herskovits, at 664 P.2d 487 by malpractice. caused the medical Note, J., Medical (Pearson, Malpractice: see also concurring); Survival, a Chance 12 to Recover the Loss Right Andel). (1985) (authored Patricia L. L. Rev. Pepperdine course, cannot recover injured merely plaintiff person Of avoiding a decreased chance of survival or of on the basis of in fact suffer death illness or must debilitating injury; plaintiff can be an award of damages. before there debilitating injury to the extent that a are to be discounted Additionally, damages condition contributed to the death or serious likely amount of recoverable damages Specifically, debilitation. “[t]he chance lost is equal [of survival] [due which are damages the total amount of negligence] multiplied by death action.” ordinarily wrongful McKellips, allowed in a P.2d at 476. the loss of chance of injury By defining In cases in fully rule of satisfied. preponderance traditional it can be said that the medical plaintiff prevails, which the than not decreased a substantial probably malpractice died or injured person ultimately chance of survival and that the create a ques- in order to severely Specifically, debilitated. cases, in these must regarding tion of fact causation show, medical proba- evidence to a reasonable present tending act or omission health care pro- that some bility, given appropriate chance of survival viders reduced substantial view, with other courts this we adopting medical care. In accord high how the chances of survival must exactly need not now state will in the future be “substantial.” We address this be in order to limits, however, There are and we doubt on a case case basis. example of survival as referred to in the that a ten Survivors of a would be actionable. dissenting opinion *6 of survival should not chance truly negligible who had a person Perhaps trial. fully through a case bring be allowed to modest, were where the chances of survival in cases importantly, to a case to trial monetary bring have little incentive will plaintiffs reduced to account for drastically would be damages because condition. standards, we turn now applicable legal addressed the Having proof Ms. Perez sufficient presented of whether question to to create a summary judgment the motion for connection with We conclude that she on the issue of causation. of fact question testimony that the expert we do not McKellips, require did. As in chance of survival in order quantify percentage specifically causation; percentages specific of fact question create measure stages determining precise at later necessary only case, Dr. present P.2d at 475. In the McKellips, 741 damages. a reasonable chance of that Mr. had Lopez Tiholiz testified Mr. recognize We medical attention. given proper survival indeed grave to have been appears condition Lopez’ preexisting strong spe- is not opinion particularly and that Dr. Tiholiz’s Nevertheless, standards stated summary judgment under the cific. moreover, and, we above, as true we must this statement accept which is from this statement in a manner all inferences must draw summary judgment. Interpreted opposing favorable to the party Perez, Dr. Tiholiz’s statement to Ms. in a manner most favorable that, through prompt testimony fairly imply deposition and other treatment, Mr. would Lopez and other decompression and more than a chance of survival. Because have had a substantial survival, Perez chances of Ms. as to slight Lopez’ doubt remains Therefore, to trial. issue of causation bring was entitled to material fact on issue of raising genuine Perez succeeded in Ms. chance doctrine and to the loss of pursuant the issue of causation granted. was summary judgment improvidently the motion is not an issue Mr. Perez’ survival The nature and quality It was not ourselves at this time. we must concern with which court’s for the district and not the basis below fully explored Tiholiz, used the Further, plaintiff’s expert, Dr. decision. reasonable every Giving qualification. term survival without summary judgment whom the appellant against inference to use of the Dr. Tiholiz’s unqualified conclude that we granted, of life. If quality with a reasonable meant survival word survival Dr. Tiholiz what explore was important felt it respondents this have examined further on could they meant point. that the will expresses floodgates litigation dissent fears Rather, Nothing

be this of the sort will occur. opened opinion. rule give infrequent will deserved redress in situations similar doctrine, to this case. And the “loss of chance” adopting health care will be able to provider responsibility not avoid conduct would have simply by saying patient died when that had a anyway, patient reasonable to live.

For reasons stated above in this the order opinion, granting motion for respondents’ summary judgment is reversed and the case remanded for further proceedings consistent herewith.

Mowbray, J., Springer, J., C. concur.

Steffen, J., Young, J., joins, with whom dissenting: My review of the record reveals no sound basis for reversal even under the “loss of chance” doctrine prematurely adopted by the majority. I would therefore affirm the order of summary *7 judgment.

The Facts A recital of relevant facts lends my context to analysis. Although this is an appeal from summary judgment, I do not find in the record basis for reversal based upon a dispute material facts. (Marco)

Marco Lopez died of a massive brain hemorrhage while in at custody the Clark County Detention Center awaiting trial on cocaine trafficking charges. The hemorrhage was appar- ently due to a congenital artery defect an in Marco’s brain.

Marco experienced during headaches the period of his confine- 3, ment from until April the date of his death on April the same year. him, Doctors at the center examined but per- formed no extensive tests and failed to recognize severity of Marco’s convulsed, condition. Marco eventually slowly lapsed coma, into a and died. Appellant care, contends that preliminary diag- nosis, and subsequent emergency treatment would given have Marco a “reasonable chance of survival.” The facts of record indicate that the nature and circumstances of Marco’s condition provided very little prospect his survival irrespective of the quality and extent medical measures that were taken or Nevertheless, could have been taken. appellant argues that fac- tual issues remain concerning negligence and causation. In addi- tion, her appellant urges entitlement to further discovery and the benefit of the “loss of chance” or increased risk of harm doctrine in her action against respondents. detail,

Turning greater facts and in a light most favorable to it is appellant, apparent why me appellant’s action (LVMC) against Vegas Las Medical Center and the treating physician, Maurice respondent Gregory, should fail aas matter of law.

According appellant, Marco was detained and incarcerated 3, on April 1985. During booking process, Marco com- ill, that he plained was but he received no treatment at that time. later, days Two Marco was taken to LVMC after that complaining headaches, fever, he was suffering from stiff neck and a and was time, too ill to eat. At this two different doctors examined Marco and observed that his blood pressure was elevated. One doctor diagnosed his condition as the flu and the other as a cervical strain. It that appears neither was diagnosis made with the benefit x-rays or a spinal examination to determine the basis for limited neck movement or rotation.

Marco was confined in the medical ward of the center from 9, April 5 to April During 1985. this time his headaches were otherwise, unrelenting and no examination attempt, was 15, made to determine their cause. On Marco April placed headaches, on sick call after complaining officer made a notation that Marco should be watched.

At approximately 4:40 p.m. April Marco commenced Dr. having Gregory seizures. was informed of this development and, inmate, by telephone without the sick examining ordered that he receive valium and phenolbarbital. Appellant also asserts that Marco into a began slipping coma around 5:30 p.m. but was ignored for another five hours and twenty minutes. Apparently, nurses duty nothing did for him after administering the anti- seizure medication and even failed to regularly take vital his At some signs. point around 11:00 p.m. Dr. evening, *8 and, Marco, Gregory was summoned after examining pro- nounced him dead.

Dr. Henry Soloway performed the and autopsy determined that Marco from a massive expired intercerebral hemorrhaging that in his was caused either opinion aneurysm an or a congenital arteriovenous malformation.1 Sabo, a of nurs- Carolyn professor experts, of appellant’s One Vegas, by deposi- at Las testified of Nevada University at the ing Marco’s recorded improperly staff had nursing that LVMC’s tion disputed by experts representing appel both Soloway’s diagnosis was 1Dr. experts post that the mortem respondents. Appellant’s contended and lant aneurysm. Respondents’ expert description of an had findings included no Soloway’s that evidence of either of Dr. and stated similar reservations rupture if a had occurred in accordance palpable been findings would have Soloway’s Dr. surmise. with 10 that that Marco still signs might

vital and absent dereliction be However, alive. Professor Sabo admitted that she was not quali- express opinion concerning surgical fied to an the effectiveness of intervention in life. saving Marco’s Tiholiz, Ivan

Appellant’s expert, opined depo- other Dr. in his sition that medical attention and care Marco provided to were and negligent below standard care. Dr. Tiholiz appropriate also testified that Marco have lived if he might had received treatment, However, including decompression. Dr. Tiholiz that if admitted even Marco had received medical likely attention of it was acceptable quality, than not that hemorrhage Marco’s would have been fatal.2 Lewin, a neurosurgeon, Dr. Richard expert, Respondents’ not have intervention could surgical that deposition testified death, that if Marco had one and even prevented Marco’s doubted, he survival would which or as respirator quadriplegic. have meant life on judgment entered in favor of summary district court could not appellant prove that ground respondents caused Marco’s death. negligence alleged

Discussion 408, Miller, (1979), P.2d we Nev. 1191 In Orcutt v. summary judgment for a to avoid plaintiff held that order must estab- based malpractice, action lish: (2) practice, of medical care or that (1) the standard accepted standard, (3) conduct from the departed

the doctor’s injuries cause of the conduct was his [the doctor’s] omitted). (citations suffered 411, Id. at 595 P.2d at 1193. that an statement that the expert’s

We further held in Orcutt precipi- complained “probably” medical treatment enough genuine raise a issue of the ultimate condition was tated Id. at 1193. Under this fact for trial. at P.2d material established, standard, even of care was if even if the standard received fell below that standard monitoring the care and Marco fifty 2 When asked if Marco’s was better than survival condition, given high probably his that he did have that Dr. Tiholiz stated not Although appellant of a chance. claims that doctor later indicated that either, fifty percent Marco’s chance be less of survival would not than have record, testimony agree depositional reviewed doctor’s and cannot Moreover, appellant’s opinion not with contention. Dr. Tiholiz did voice an to what he meant the term “survival.” *9 care, of I do not believe that the final that of requirement, causation, can be shown.

Appellant testimony asserts that her that Marco had a expert’s “reasonable chance equivalent of survival” is to or than stronger in Orcutt “probably precipitated” expert testimony However, which this court reversed summary judgment. appel- context, testimony, lant’s when examined in expert’s indicates undefined, survival,” that the “reasonable chance of falls short of showing necessary threshold to raise the asserted chance of survival to an may issue which be submitted properly jury. to a

Dr. Tiholiz testified with proper non-negligent medical However, treatment and decompression, might Marco have lived. attention, he also testified that even with not, likely than Marco’s hemorrhage would have been fatal. Upon further he questioning, also testified that Marco had than less a fifty percent chance survival. Respondents’ that there was expert opined less than a one survival, condition, given congenital Marco’s and then qualified “survival” to mean living as quadriplegic Thus, while continually sustained there respirator. was an apparent agreement among that whatever experts Marco’s survival, chances of were they fifty less than percent.

The majority, focusing on testimony indicating that Marco was of an deprived undefined chance of survival because of inade- care, quate seize the moment to adopt “loss of chance” doctrine. I suggest majority’s is both ruling premature to the instant inapplicable case. the record

Concededly, reflects sufficient evidence to avoid summary judgment on the issue of professional negligence. Cau- sation, however, analyzed when in connection with the real injury, is not in the record. supported The entire thrust of the decedent, Marco, majority opinion is that the deprived some his affliction prospect surviving negligence health care providers. Unfortunately, the majority ignores state of the record the nature concerning meaning of the value, the survivability attainment of which was atten- assertedly uated respondents’ negligence.

The uncontroverted evidence reveals that the prospect of “sur- vival” to Marco meant more than nothing continued life on a or as a I respirator quadriplegic. strongly suggest that the loss of any chances for such a whether fifty one percent, hardly supports legally cognizable cause of action. value, Obviously, where survivability itself has little or no event, loss of a chance to survive has even less value. In suggest that the majority doubly rule is bad in the instant case. On *10 record, of fifty than a survival percent

the Marco had less care, for his medical and his chances of the of irrespective quality are virtually non-existent. If doctors survival were meaningful a circumstances because of liability under such subjected to be to doctrine, many how fewer physi- loss of chance majority’s the survivability who have patients poor will be to treat willing cians sug- To the survivability prognoses? pose question or quality altered many who have in instances Physicians, the answer. gests the mounting and extent of their because of practices the nature with maintaining trauma associated personal costs lawsuits that far too fre- defending negligence coverage merit, no incentive to will have little or lacking quently under such tenuous for prospects their careers at risk place treatment. successful a to consider obligation

I that the has serious suggest judiciary Moreover, rulings. of its I am also aspects the law and economics judiciary responsible that unless the maintains a opinion system, lawyers under the tort our exposure level of human opportunity justifiable tomorrow will not have the seek redress to that which legal system comparable pres- for clients under a ently Today’s ruling exposes practitioners exists. lessening the chance of a liability negligently incremental (who, fifty than a at best has less patient survival) meaning of survival considering to survive without why, my This is patient. precisely as it relates to the specific adequate has and without an majority prematurely opinion, foundation, the loss of chance doctrine. adopted factual court, this there is no showing Based the record before to lessen the decedent’s chances for anything that did respondents vantage according From a favor to meaningful point a survival. it could be said that factual issue exists as appellant’s position, or omissions created an added to whether actions respondents’ condition. It to be surviving risk to Marco’s chances of his is nothing did to create Marco’s emphasized respondents However, exists that argument condition. the factual basis for diagnose failure to respondents’ properly inattention increased his risk of non-survival. That fact is Marco’s condition maintains majority’s ruling. majority for the predicate that be held liable for Marco’s may decreasing respondents his condition. changes surviving with a case the issue proper involving If we were faced there could be a majority, perhaps persuasive addressed of chance in certain made for the loss doctrine argument adopting case, however, In the instant negligence. cases of professional to the expense and trauma of a majority subjecting respondents no basis for that provides concluding trial when record conduct had causal respondents’ relationship effect a meaningful regard, Marco’s survival. In that prospects that emphasize again appellant’s opined that even the expert been, medical attention would have presence not, death; likely than ineffective in Marco’s and the preventing expert quality also failed to define the of Marco’s existence if he Thus, had survived his the neurosurgeon’s condition. conclusion that Marco’s one chance of survival meant survival on respirator or stands unrebutted and unchal- quadriplegic lenged. Surely may appellant we assume if had obtained controverting medical evidence neurosurgeon’s prognosis the nature of Marco’s concerning unlikely she would presented have it to the district court. then, record,

On the majority concludes that respondents *11 may be held liable for decreasing Marco’s chance to survive as a respirator. or on a I do not believe that an quadriplegic extension Moreover, of to liability lengths justified. such is I fear that the ruling will add to on majority organized efforts the impetus part profession of the medical insurance to industry and restructure system the tort or limit the or prospects otherwise amount of relief provably aggrieved by available to and of parties truly acts negligence. why the

Having expounded reasons I believe the has majority prematurely both the loss of chance and adopted doctrine arrived doctrine, at the wrong result under the of that turn application now the of reasoning majority suggest to the that an opinion analysis the majority’s logic of illustrates additional concerns the conclusions regarding reached. doctrine, the asserts majority of chance” “loss the adopting In as the not defined by the law is redressed to be injury

that “the rather, chance of survival decreased itself, but, the death causation, the In terms of malpractice.” the medical caused injury, the ultimate regarding that causation holds now majority the of action. death, of cause instance, an element is not this in by a preponderance be it can shown Rather, whether issue is the decreased negligence provider’s health care a the that evidence medical evidence expert If to survive. chance patient’s the her condition surviving his or patient’s a that revealed could care provider the health then was, example, percent, ten for prospects survival the reducing negligently liable for be held ninety had a the patient fact that The four percent. to from ten no her has or affliction to his succumbing chance of percent case, the facts this Under rule. majority’s the under relevance nexus between a causal show to the need abandonment a represents imposed be liability can before injury negligence liability basing law tort established from departure worrisome which is the cause of duty proximate a breach of resulting imposing liability injury It is injury. analogous act of only negligence where the defendant’s from a collision words, In other if permit. his driver’s forgetting carry ten only that he would have had a condition was such patient’s care, the best of medical that surviving chance of under element of or even a required proof fact would neither be a Under such majority’s ruling. under the relevant consideration circumstances, negligence reduced physician’s the fact survival, but otherwise had ten the theoretical would have no bearing effect on the demise patient’s no causal right to recover. plaintiff’s ruling sop, stating The to buttress its with a majority seeks course, injured or cannot recover plaintiff person “[o]f chance of survival or of merely on the basis of a decreased must in fact avoiding debilitating injury; illness before there can be an award of debilitating injury suffer death or there injury, if the suffers no could damages.” Obviously, patient however, is that if death be no basis for The damages. problem, results, rule does not concern itself with majority injury of whether the defendant conduct caused or physician’s issue The injury. liability contributed to the death or basis is reduction in the chance to and a resultant composite negligence injury. avoid death or determining damages rule a formula for majority produces view,

which, highly both inconsistent and If my speculative. for which have injury, prospects suffers death or patient majority rule negligence, provides been increased medical to be discounted to the extent that a damages that “the *12 to the death or likely condition contributed serious damages amount of recoverable is debilitation. Specifically, ‘[t]he lost to negli- of chance equal [of survival] [due damages the total amount of which are gence] multiplied by (Quoting death action.’” ordinarily wrongful allowed in a Inc., 467, (Okl. Francis 741 P.2d 476 Hosp., v. Saint McKellips above, 1987)). if the had a posed patient the Using hypothetical four percent by ten chance of survival reduced to had a sizable patient earnings and if the physician’s negligence, ones, total based those history damages loved surviving amount, would death actions ordinarily wrongful allowed in $1,000,000.00. The then multi- formula would hypothetically, which would be the damage figure by percent, the total six ply survival had been percentage by patient’s which The damages resultant by negligence. reduced the defendant’s $60,000.00. would be This on the defendant imposed physician result is inconsistent with traditional tort concepts, because there be no may causal at all between the relationship physician’s and the death. It negligence patient’s would in fact be true under the preceding that there was a hypothetical ninety-four percent probability physician’s negligence had no more to do with the death than the failure of a patient’s defendant driver to have his driver’s available at the scene of a collision where permit injuries occurred without causative negligence on the defend- Moreover, ant’s part. formula is majority unsound in that it fails to differentiate between the value of a chance for surviving under circumstances of a complete recovery and the value of a chance for survival as a ventilator-dependent quadriplegic. faculties, Marco his began incarceration in of all his possession and the formula would majority apparently subject respondents a fraction of allowed in damages “ordinarily death wrongful action” without regard allowance for the fact that survival for Marco did not include for a prospects complete or substantial If, fact, recovery. in had majority recognized great dispar- ity in the meaning of survival with full recovery survival of course, the nature and quality facing Marco (assuming, he survived), could have it should be evident why an affirmance of summary in judgment this case would be appropriate.

The majority concludes that “[b]y defining injury as the loss of chance of the traditional rule of preponderance is fully satisfied.” I that the rule suggest concerning proof causa- tion of the preponderance evidence is no more satisfied by redefinition of majority’s “injury” than it would be if the majority arbitrarily had decided to equate negligence with injury, thus allowing recovery negligence the abstract. As the Cincinnati, Inc., court Charity held v. Sisters of Cooper (Ohio 1971), N.E.2d recovery, of chance of “[l]oss alone, is not an standing injury from which will flow.” damages Moreover, statute, 41.085, under Nevada’s death wrongful NRS the basis for a death claim is wrongful negligence wrongful acts that cause the death of the decedent. There is no latitude in the statute for shifting damages basis for from conduct caus- ing death to conduct lessening prospects survival.

Particularly troubling, suggest, majority’s determina- future, tion that in the definitions of “a substantial chance of survival” will be determined this court appeal, on a case majority case basis. would seemingly permit action to go forward under evidence of the slightest survival on the theory that “in cases where the chances of survival are truly minimal, will have little *13 plaintiffs monetary incentive to bring trial, case to because would be damages drastically reduced to account for the condition.” any it difficult to believe that form of

In the first I find place, system would to a trial with no direction judicial subject parties survivability as to whether a minimum threshold of exists This appeal. on the evidence until this court decides issue on case, is not screening appeal only of case after the fact type it judicial inefficiency, subjects physi- a source of manufactured cians to a most tortured form of before a basis procedure reaching to assume that of minimal finality. Secondly, prospect filing would act as a deterrent to the of lawsuits involv- damages is, believe, minimal chances of survival I unrealistic. I ing suggest vexing that one of the most unfortunate aspects today many is the fact that too malpractice litigation attorneys complex who are to handle such cases unqualified subjecting physicians litigation to hellish that has little or no often, on the attorneys proceed assumption merit. Too such at the extract nuisance or very they least will harassment value damages beleaguered physician. suggest from the rule will incentive for a majority provide proliferation of these of suits because now it will not have to be shown that the types actions had causative effect on the ultimate physician’s injury or death of the patient.

Finally, the have sub silentio majority adopted premise that any showing survivability, irrespective meaning or the survival will quality prospect, support a cause against may of action whose conduct have reduced physician the patient’s chances of survival. As mentioned previously, emphasized again, ruling predictably such a will elicit a reaction from the medical either num- community by way significant bers of refusals to treat in such or a patients potential categories effort to or limit the tort major change existing system as it applies negligence. area of medical If evidence had been presented supporting proposition that demonstrably Marco of a negligence deprived significant meaningful recovery, chance for a then summary judgment would however, have been In my opinion, appellant has not improper. carried her burden under Orcutt or even shown that the respond- ents increased the of harm to which risk Marco’s condition him and which caused subjected eventually his death. The size and force of the suffered Marco raises serious doubts rupture concerning ability despite his survive efforts or respondents’ therefore, suggest, lack thereof. I that the instant case is an the extent to which inappropriate precedent determining sur- cases; here, vival be demonstrated in future expectancies must no legally sufficiency standard of would be satisfied contemplated the evidence.

Moreover, at least until this court reviews an case appropriate seriously considering of a adoption carefully defined loss of doctrine, chance I find the view persuasive that “in order to with the comport cause, standard of proof proximate in a malpractice case must prove defendant’s negligence, probability, proximately caused the death.” Cooper, 272 N.E.2d at 103.3 above, For the reasons noted I am convinced that appellant’s contentions lack merit. I would affirm Accordingly, the summary entered the district court. judgment Appel- COMPANY,

THE CO-OPERATORS INSURANCE Respondent. RENT-A-CAR, lant, v. ALLSTATE No. 21105 February 804 P.2d 1050 Smith, E. Vegas, James Las for Appellant.

Thompson Harper, Vegas, & Las for Respondent. appear majority’s 3It would to me that if the just loss of chance doctrine is action, in the malpractice context of a medical equally just it would be applicable in such involving professions, actions other including profession. example, disgruntled For if a litigant or unsuccessful loses case, through and it could expert testimony be shown forty that there was a case, winning lawyer’s but efforts reduced winning by degree, the chance of litigant some would be able to pursue an action based the loss of adopted by chance doctrine view, majority. majority Under “injury” would be the loss of chance opposed to the unfavorable verdict.