Caseflicks

Washington Supreme Court • 1983

Herskovits v. Group Health Cooperative

664 P.2d 474 | 99 Wash. 2d 609 | 1983 Wash. LEXIS 1564

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Takeaway

In short, Herskovits allows a medical-malpractice claim to go to the jury when negligent care substantially reduces a patient's chance of survival—even if that chance was never above 50 percent—while limiting recovery to harm attributable to the lost opportunity.

Background

Leslie Herskovits repeatedly sought treatment from Group Health in 1974 for a persistent cough, chest pain, rales, and abnormal chest X-rays. His estate alleged that Group Health treated him only with cough medicine and failed to investigate symptoms that should have prompted an earlier cancer diagnosis. After an outside physician evaluated him in 1975, testing revealed lung cancer. His left lung was removed in July 1975, and he died in March 1977.

For purposes of summary judgment, the parties assumed that Group Health negligently failed to diagnose the cancer in December 1974 and that the delay reduced Herskovits' five-year survival chance from 39 percent to 25 percent—a 14-percentage-point, or 36-percent relative, reduction. The estate's expert could not say that earlier diagnosis probably would have prevented death; Herskovits had less than a 50 percent survival chance even with timely diagnosis. The trial court granted Group Health summary judgment because the estate could not prove that, but for the delay, Herskovits probably would have survived.

Issues

Issue #1

Whether a medical-malpractice plaintiff may reach the jury when negligent delayed diagnosis reduced a patient's less-than-even chance of survival, but the plaintiff cannot prove that timely care probably would have prevented death.

Holding

Yes. Evidence that negligent delayed diagnosis reduced Herskovits' five-year survival chance from 39 percent to 25 percent was sufficient to create a jury question on proximate cause.

Reasoning

Summary judgment is proper only when no genuine issue of material fact exists, and all reasonable inferences must favor the nonmoving party. Given the parties' assumption of negligence and causation of a 14-point reduction in survival probability, the court treated the question as whether that reduced opportunity was legally sufficient evidence of causation.

The court relied on Restatement (Second) of Torts § 323(a), under which a person undertaking services necessary for another's protection may be liable when negligent performance increases the risk of harm. Washington had already recognized in Brown v. MacPherson's that one who negligently renders aid and thereby increases risk may be liable for resulting physical harm.

In this kind of case, the defendant did not create the underlying cancer; rather, it allegedly failed to protect the patient from harm posed by that independent condition. Because the factfinder must consider what might have happened with proper care, the ordinary demand for certainty about the counterfactual result is ill-suited to the claim.

Following Hamil v. Bashline, the court held that once the plaintiff shows negligent conduct increased the risk of the harm that occurred, the jury may decide whether that increased risk was a substantial factor in producing the death. The plaintiff need not first prove that proper diagnosis would more likely than not have saved the patient.

Requiring a greater-than-50-percent initial survival chance would effectively immunize doctors and hospitals whenever a patient was already more likely to die than survive, no matter how serious the negligent delay. The court considered that result inconsistent with tort law's treatment of a wrongdoer who has diminished a meaningful opportunity for recovery.

Issue #2

Whether recognizing loss of a chance makes the defendant liable for all damages flowing from the patient's death.

Holding

No. The loss-of-chance theory does not automatically permit total recovery for every damage associated with the death; damages must be limited to losses directly caused by the premature death.

Reasoning

The court emphasized that loss of a chance is not a rule imposing full wrongful-death liability merely because negligence reduced a survival prospect. The damages award must reflect harms directly attributable to the premature death, including such items as lost earnings and additional medical expenses.

The court cited Wooldridge v. Woolett for the related proposition that shortened life expectancy is not independently recoverable as a separate damages item, though it may affect the value of future earning capacity. The case was therefore remanded for further proceedings rather than for an automatic award of full death damages.

Concurrences

Justice Pearson

Reasoning

Justice Pearson agreed that summary judgment should be reversed, but rejected the majority's reliance on Hamil and Hicks as a relaxation of ordinary causation rules. In his view, those decisions were not persuasive authority for treating increased risk alone as proof that negligence caused the patient's death when the patient had less than a 50 percent chance of survival.

He identified the central question differently: the court first had to define the injury. If the injury were Herskovits' death, traditional Washington causation law required proof that negligence more likely than not caused that death, and the estate could not meet that burden. But if the injury were the loss of Herskovits' chance of survival, Dr. Ostrow's testimony did establish that Group Health probably caused a substantial reduction in that distinct injury.

Pearson would expressly recognize a lost or diminished survival chance as an independently compensable injury. Drawing on Professor Joseph King's analysis, he reasoned that the all-or-nothing rule is arbitrary: a patient with a 51 percent chance may recover all death damages, while a patient with a 49 percent chance recovers nothing, even though negligence demonstrably destroyed value in both situations.

Under Pearson's approach, the decedent's personal claim would survive under RCW 4.20.046, and the wrongful-death statute would also apply because a person causes a death, for statutory purposes, when the person substantially reduces the victim's chance of survival. Damages should be proportional to the lost chance—for example, a lost 40 percent survival chance would support 40 percent of the value of the life interest that would have existed had the patient survived.

Dissents

Justice Brachtenbach

Reasoning

Justice Brachtenbach concluded that the estate failed to produce evidence sufficient to show proximate cause without speculation. He agreed that survival statistics were relevant and admissible, but maintained that the pertinent question was whether all the evidence, not merely the 14-point statistical difference, showed that the doctor's conduct probably caused Herskovits to die sooner.

He rejected the majority's use of the substantial-factor test. In his view, that test ordinarily addresses multiple independent causes, each of which alone could have produced the injury, rather than a case where the patient’s underlying disease could have caused death regardless of the alleged negligence.

Statistics showing that stage 1 patients had a higher average five-year survival rate than stage 2 patients did not establish that Herskovits himself would have been among those helped by earlier diagnosis. The record contained case-specific uncertainties: the tumor's location made surgery more difficult, the studies did not account for that location, and the tumor's small size may have made earlier detection less likely.

Brachtenbach also noted evidence that Herskovits lived about as long as average patients with either stage of this cancer, undercutting an inference that the delay shortened his life. Though he acknowledged the harshness of denying recovery, he believed malpractice cases required caution because medicine is inexact and liability cannot rest on statistical possibility alone.

Justice Dolliver

Reasoning

Justice Dolliver would have affirmed because traditional proximate-cause principles require proof that the defendant's negligence probably caused the death. Since Herskovits' survival chance was below 50 percent both before and after the delayed diagnosis, he reasoned that it remained more likely than not that Herskovits would have died even with timely care.

In Dolliver's view, the 39-to-25-percent change showed only a reduced chance, not that earlier diagnosis probably would have changed the outcome. A jury could not determine, without speculation, whether Herskovits would have lived longer within the five-year period had the diagnosis occurred earlier.

He found the majority's authorities factually unhelpful because several involved patients with greater-than-even survival prospects or expert testimony that prompt treatment would have saved the patient. He favored Cooper v. Sisters of Charity, which rejected recovery for a mere chance of survival because a lesser standard would undermine established causation limits and risk greater injustice.