Mid-Atlantic Health Law TOPICS

A version of this article was published in The Daily Record on September 10, 2012.

In Mohr v. Grantham, the Supreme Court of Washington recently extended the "lost chance of a better outcome" doctrine to medical malpractice cases in which the ultimate harm to the patient is disability rather than death. The State of Washington had previously recognized the doctrine in death cases.

The doctrine has now been recognized in approximately half of the jurisdictions in the United States, but not in Maryland. Basically, the lost chance doctrine alters the traditional rule that health care providers are not liable for providing negligent care if a bad outcome is probable even with good care. For example, in some situations, death by reason of a pre-existing condition might be a probable outcome whether or not a particular treatment is provided appropriately.

A. Mohr v. Grantham

In Mohr v. Grantham, a patient, Linda Mohr, suffered a head injury in a motor vehicle accident. She received treatment at the emergency room of a local hospital, and was then released. It was later determined that at some point she suffered a trauma induced stroke that ultimately rendered her permanently disabled.

Ms. Mohr alleged that her physicians had breached the recognized standard of care for treating head trauma, and that their actions had substantially diminished her chance of a better medical outcome. Specifically, one of her medical experts opined that her stroke should have been diagnosed sooner, and that had she started anti-coagulants, anti-platelet agents, and general brain protection care earlier, she would have had a 50 to 60 percent chance of a better outcome - either no disability or, at least, significantly less disability.

The Washington Supreme Court concluded that, to the extent Ms. Mohr was able to prove that her physicians' negligence reduced her chance of avoiding or minimizing her permanent disability, she was entitled to compensation for that lost chance of a better result. The State of Washington had previously adopted the lost chance doctrine in a 1983 case involving a patient who died of lung cancer after the alleged failure of his health care providers to diagnose and treat his cancer in a timely manner.

The injured party's medical experts in the 1983 case had testified that the delay in diagnosing his condition had reduced his five year survival rate from 39 percent to 25 percent. The court held that the harm caused by the physicians' negligence, a decrease in the injured party's survival rate by 14 percentage points, was a compensable injury. It reasoned that "[t]o decide otherwise would extend a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence."

The Mohr decision extends the lost chance doctrine to cases where the ultimate harm is some serious injury short of death. In doing so, the court concluded that there was no meaningful basis to distinguish permanent disability from death for purposes of raising a loss of chance claim.

However, the court also concluded that Ms. Mohr's damages would be limited to the "percentage" of the ultimate harm that she suffered that was attributable to her physicians' negligence. For example, if an injured party suffers $100,000 of damages, and there is a 30% chance that the patient would have avoided those damages with appropriate care, then the party who does not provide that care would be liable for $30,000.

B. Lost Chance Doctrine

The lost chance doctrine represents a departure from traditional legal principles, which ordinarily require an injured party to prove a probability of harm; that is, the negligence of a wrongdoer more likely than not brought about the injured person's injuries. It is not enough for an injured party to show that he was deprived of a significant chance of avoiding harm.

Therefore, in the context of a medical malpractice case, if a patient with a pre-existing medical condition has a greater than 50 percent chance of dying or suffering harm short of death even with proper medical treatment, then his physician may not be found liable under the traditional standard for negligence. In such cases, the pre-existing disease or injury is considered the more likely cause of injury or death, not the accompanying medical negligence.

Over the course of the last half century, however, a number of courts, including the Washington Supreme Court, have concluded that the traditional rule is too restrictive, and have adopted the lost chance doctrine. Under that view, a showing that an injured party was deprived of a significant chance of avoiding harm constitutes sufficient evidence of causation. Although such a patient likely would have suffered harm even in the absence of medical negligence, courts adopting the lost chance doctrine consider the lost chance of a better outcome, not the ultimate harm itself, to be the compensable injury.

C. Maryland and Other Jurisdictions

The lost chance doctrine has been adopted in one form or another by many courts, but it has by no means achieved universal acceptance. The Mohr court noted that of those jurisdictions that have considered the issue, 21 have adopted some form of the lost chance doctrine, while 10 jurisdictions have declined to do so. As recently as this January, a federal court applying Maine law concluded that Maine did not recognize the lost chance doctrine in medical malpractice cases.

Maryland is one of the states that has declined to adopt the lost chance doctrine. In a wrongful death decision, Maryland has held that, if a patient's chance of survival is less than 50 percent at the time that the malpractice occurs, a physician may not be held liable for his acts or omissions which reduce or eliminate the patient's chance of survival. That court concluded that the probable cause of death is not the malpractice but the pre-existing medical condition.

D. The Compensation Conundrum

The two prevailing approaches to causation in medical malpractice cases (namely, (i) whether the harm is "more likely than not" to occur, and (ii) the lost chance doctrine) will each result in overcompensation or undercompensation in some situations. For example, a cancer patient, who has a 40 percent chance of survival with proper treatment, may eventually succumb to cancer after failing to receive that treatment. We can predict that out of 100 similarly situated patients, 40 would have been saved by proper intervention and care, but the other 60 would have died in any event.

In an idealized system, the 40 patients who died as a result of their physicians' negligence would be fully compensated for their deaths, and the 60 who would have died anyway would be denied compensation. The conundrum is that medical science cannot tell us whether any individual patient who dies was one of the 40 who did so as a consequence of medical malpractice, or one of the 60 whose medical outcome was not affected by the failure to receive proper care.

Under Maryland law, none of the 100 cancer patients will be compensated for their deaths. That outcome is arguably proper for the 60 patients who would have died anyway, but it deprives compensation to the 40 who would have survived with proper care.

Under the lost chance doctrine as adopted by the Washington Supreme Court, each of the 100 cancer patients would be awarded 40 percent of the damages incurred as a result of their deaths. Proponents of the lost chance doctrine argue that all 100 patients will have been properly compensated, because the injury for which compensation is awarded is not their deaths but the diminished opportunity for a better medical outcome.

Nevertheless, under the lost chance doctrine, the 40 patients who have died as a result of medical negligence have arguably been undercompensated to the extent that they only receive partial compensation for their negligently caused deaths. By the same token, to the extent that negligence on the part of their health care providers did not contribute to their deaths, the 60 patients who would have died anyway have arguably been overcompensated by any award, even one limited to the percentage of ultimate harm that is associated with the lost chance of a better outcome.

The "more likely than not" standard and the "lost chance of a better outcome" doctrine each have their adherents. However, both sides would likely agree with the Mohr court's conclusion that whatever rule applies in cases involving death should also apply in regard to substantial disability.