In most medical malpractice lawsuits, plaintiffs have to prove “but-for” causation. What this means is but for the negligence of the medical professional, plaintiff would not have suffered an adverse outcome.
However, this burden of proof would leave those who already had terminal conditions or residual chances of survival or existing serious illnesses with little or no chance of recourse for their doctor’s medical negligence. Enter the “loss of chance” doctrine. It’s generally used in medical malpractice lawsuits involving a plaintiff who can’t prove “but for” causation because he or she was likely to die from the condition even before the doctor was negligent. In these cases, the doctor’s negligence usually involves the failure to diagnose or treat, which causes plaintiff a loss of chance to survive or have a more optimal outcome.
In a recent case before the Washington Supreme Court, justices were asked to review two questions in a “loss-of-chance” medical malpractice lawsuit:
- Should the court use a “but for” or “substantial factor” standard of causation in these types of claims;
- Should evidence relating to contributory negligence be excluded based on plaintiff’s failure to follow a physician’s orders.
The trial court had applied a but-for standard, but held that a contributory negligence defense wasn’t appropriate in this matter.
The Washington Supreme Court affirmed the “but for” analysis, but reversed on the issue of the contributory negligence defense.
According to court records in this medical malpractice case, plaintiff visited his primary doctor for treatment of a wound on his foot that had worsened. The doctor arranged for him to see a podiatrist, who diagnosed him that same day as having a non-cancerous legion. He recommended two possible courses of treatment – one involving surgical excise or a more conservative treatment. Plaintiff chose the latter. Doctor conducted the treatment that day and instructed patient to come back in 10 days.
Plaintiff returned and it appeared the wound had not responded to treatment. The podiatrist again informed him of his options, which included surgery, which the doctor favored. However, plaintiff chose the more conservative treatment, which was conducted. Plaintiff was again instructed to return in 10 days. However, plaintiff did not return in 10 days. Instead, he came back two months later, complaining it was still sore. The legion was bigger and the podiatrist recommended surgical biopsy, though he didn’t believe it was cancer.
Plaintiff sought a second opinion. That doctor diagnosed the same condition, but plaintiff again opted for a more conservative treatment.
About a month later, plaintiff saw a dermatologist, who biopsied the legion and discovered it was cancer. Plaintiff underwent surgery and the legion was removed. However, the cancer occurred and he underwent chemotherapy and radiation. However, this didn’t work either and he ultimately had to have his leg partially amputated.
Plaintiff then filed a lawsuit against the employer of the first podiatrist, alleging negligent diagnosis depriving him of a 40 percent chance the cancer would not recur.
In preparation for trial, the court granted plaintiff’s motion for a loss of chance jury instruction, but went against another motion of his in finding the “but-for” standard of causation is appropriate in this case. The court also determined defendant couldn’t present a contributory negligence defense.
The state supreme court affirmed on the first element, but reversed on the second and remanded the matter for trial.
If you have been injured as a result of a missed diagnosis or improper diagnosis, our injury lawyers in Orlando can help.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Dunnington v. Virginia Mason Med. Ctr., Feb. 2, 2017, Washington Supreme Court
More Blog Entries:
Florida Supreme Court Rejects Medical Malpractice Arbitration Agreement, Jan. 16, 2017, Orlando Medical Malpractice Lawyer Blog