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Tillson v. Lane – “Loss of Chance” Doctrine in Medical Liability Cases

Plaintiff in the medical malpractice case of Tillson v. Lane will have the opportunity to take his case to trial, following the Vermont Supreme Court’s reversal of an earlier trial court ruling that granted summary judgment to defendant on the “Loss of Chance” doctrine.

The “Loss of Chance” doctrine, while permitted in several jurisdictions, is not recognized in Florida, and neither is it recognized in Vermont, where this case originated. Under the “loss of chance” doctrine, plaintiffs are compensated for the extent to which a defendant’s negligence reduced victim’s likelihood of achieving a better outcome, assuming that likelihood was reduced by less than 51 percent.

The idea is that rather than treating a medical malpractice case as an all-or-nothing issue, claimants should be able to pursue action against health care providers whose actions or inaction resulted in loss of chance of a better outcome or of avoiding adverse consequences. But again, Florida has expressly rejected this doctrine, and so has Vermont, by essentially finding that health care providers should only be accountable for the damages proximately caused by negligent acts or omissions. So it was in this context that the Tillson case arose.

According to court records, plaintiff underwent a procedure to remove a cataract in one eye. Defendant performed the procedure at a local hospital. Within 24 hours of the procedure, plaintiff contacted the doctor to report an infection. The physician diagnosed plaintiff with endopthalmitis, but didn’t refer plaintiff to a retinologist for treatment. Over the next 48 hours, plaintiff condition worsened. By the end of that time period, he was permanently blind in one eye. Plaintiff alleges the cause of the infection was a bacterial infection.

Plaintiff sued the doctor and the doctor’s employer, alleging breach of duty of care for failure to timely and accurately recognize, diagnose and treat his infection.

During discovery, plaintiff presented the expert witness testimony of an expert on endopthalmitis. At a deposition, that doctor testified it was his opinion that had plaintiff been referred to a retinologist, undergone another procedure and obtained antibiotics, he would not be blind. He stated in his deposition that had plaintiff received those treatments, he would have “had a real chance” of saving his sight. However, he alleged that due to defendant’s medical malpractice, plaintiff had “no real chance” of saving his sight. He stated that more likely than not, had plaintiff undergone the noted treatment, he would have “wound up with a better result.”

Defendants moved for summary judgment, arguing the testimony of plaintiff’s expert witness amounted to “loss of chance” testimony that wasn’t adequate to show plaintiff’s injury was caused by defendant’s failure to adhere to the accepted standard of care. Trial court agreed and granted summary judgment. Plaintiff appealed, and the state supreme court reversed and remanded.

The state high court found the doctor’s testimony was sufficient. Expert witness testified that had the patient received timely consultation, he likely would have had “a better outcome,” which he further described as “functional vision” in his one eye, such that he could have likely been able to read large print. The court held that while this statement was equivocal, the witness did specifically say there was at least a 51 percent chance plaintiff would have had some meaningful degree of vision in the eye in question had he been timely referred to a specialist. This, the court ruled, was sufficient for the case to survive summary judgment.

That means the case can move on to the trial phase.

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.

Additional Resources:

Tillson v. Lane , October 2015, Vermont Supreme Court

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