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Supreme Court of Louisiana • 1996

Smith v. State Dept. of Health & Hosp.

676 So. 2d 543

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Takeaway

In short, this case holds that a negligently lost chance of survival is independently compensable in Louisiana, but its value must be set directly as a lump-sum general-damages award—not calculated by multiplying full death damages by a survival percentage.

Background

Benjamin Smith was hospitalized at E.A. Conway Memorial Hospital in August 1987 for a foot infection. A routine chest x-ray showed a mediastinal mass, suggested possible lymphoma, and recommended a thoracic CT scan. Hospital personnel neither told Smith or his family about the result nor arranged follow-up testing.

Fifteen months later, Smith returned with chest pain, fever, and chills. A new x-ray showed that the mass had doubled in size. Testing established that he had small-cell lung carcinoma, by then in the extensive, nonoperable stage. Smith died in March 1989 at age forty-five. His wife and two children sued the Department, which operated the hospital. The Department stipulated that its personnel breached the applicable standard of care, but contested causation and damages.

The trial court dismissed the action, concluding that the plaintiffs had not proved that the delay caused Smith's death or a lost chance of survival. The court of appeal reversed. It found that the negligence deprived Smith of a ten-percent chance of surviving five years and awarded ten percent of the full wrongful-death and survival damages—$76,434. The Louisiana Supreme Court granted review principally to determine how damages for a lost chance of survival should be valued.

Issues

Issue #1

Whether the plaintiffs proved a compensable loss of a chance of survival despite Smith's less-than-even chance of surviving if the cancer had been promptly treated.

Holding

Yes. The Department's negligence deprived Smith of a compensable chance of survival, even though the evidence did not establish that he probably would have survived with timely treatment.

Reasoning

Loss of a chance of survival is a distinct injury, separate from the death itself. A plaintiff need not prove that proper treatment more probably than not would have prevented death in order to recover for that distinct injury. Instead, the plaintiff must prove by a preponderance of the evidence that the patient had a chance of survival when the malpractice occurred and that the defendant's conduct deprived the patient of all or part of that chance.

The evidence met that standard. Every expert agreed that Smith had some chance of survival when the first x-ray revealed the mass in August 1987, although estimates ranged below fifty percent. By October 1988, after nearly fifteen months without the required follow-up, his chance was virtually zero because the cancer had advanced to an extensive, nonoperable stage.

The degree of the lost chance may bear on causation and on the amount of damages, but a tort-caused loss is compensable in any degree. Thus, the court of appeal correctly rejected the trial court's conclusion that no actionable loss occurred simply because Smith survived as long as the average patient who received prompt treatment.

Issue #2

Whether damages for a less-than-even lost chance of survival should be calculated by multiplying full wrongful-death and survival damages by the percentage chance lost.

Holding

No. The factfinder must value the lost chance itself as a distinct general-damages injury and award a lump sum based on all relevant evidence, rather than mechanically applying a percentage to hypothetical full death damages.

Reasoning

The Court rejected full wrongful-death and survival damages because the plaintiffs did not prove that the malpractice more probably than not caused Smith's death. Full recovery would improperly treat the Department as having caused the death when the proof established only that it caused the loss of a chance to avoid death.

The Court also rejected the court of appeal's percentage-probability formula. That approach requires a factfinder first to assign a hypothetical value to a wrongful-death and survival claim that is not actually established, and then to discount that speculative figure by an imprecise estimate of survival probability. Mathematical reduction does not make those underlying estimates more precise.

A lost chance has value in its own right, and general damages are not susceptible to exact mathematical calculation. The factfinder should directly determine a fair lump-sum amount for the particular chance lost, just as it values other forms of general damages.

In setting that amount, the factfinder may consider the medical evidence about survival percentages, the extent to which the negligence reduced the chance, the patient's likely additional lifespan, and evidence relevant to the harms suffered by the patient and heirs, including lost support, love, and affection. These considerations guide the award without making any one percentage mechanically dispositive.

The lump-sum award remains reviewable. An appellate court can assess whether it is supported by the record as a whole, including the medical probabilities and the personal and economic losses connected to the lost opportunity.

Issue #3

What further proceedings were required after the Court adopted a different method of valuing the lost chance.

Holding

The case was remanded for the trial court to value the lost chance under the lump-sum approach and to address Smith's separate claim for shock and emotional distress.

Reasoning

Neither lower court had applied the valuation method adopted by the Supreme Court. The Court therefore set aside the court of appeal's percentage-based award and remanded for a new damages determination on the existing record, with any additional evidence the trial court chose to allow.

The trial court was also instructed to consider Smith's claim for shock and emotional distress upon learning that hospital personnel had failed to disclose his earlier, potentially treatable cancer. That injury was to be considered independently of the percentage chance of survival Smith lost.

Dissents

Justice Marcus

Reasoning

Justice Marcus would have retained the court of appeal's percentage-based method. In his view, damages should be measured by the probability of survival lost as a result of the malpractice, rather than by a lump-sum assessment of the chance itself.

Justice Victory

Reasoning

Justice Victory disagreed first with Louisiana's recognition of the lost-chance doctrine itself. He believed the doctrine conflicts with Louisiana's medical-malpractice statute, which requires proof by a preponderance that the provider's breach proximately caused injuries that otherwise would not have occurred. Permitting recovery for a lost possibility of survival, in his view, improperly relaxes that statutory causation requirement.

He also viewed the doctrine as unfair in practice because it relies on statistical probabilities. In the hypothetical example he cited, patients whose deaths were actually caused by their underlying disease could receive recovery, while patients who would have survived with proper care would receive only a fraction of their full damages.

Even accepting lost-chance recovery, Justice Victory would have adopted the court of appeal's formula: the percentage chance of survival lost multiplied by the total damages ordinarily recoverable for wrongful death. He regarded that formula as a fairer and more precise way to compensate the actual injury—the diminished chance—rather than the death itself.

Justice Victory further criticized the majority's lump-sum approach as a difficult-to-review, 'rabbit-out-of-the-hat' damages award. Without a stated survival percentage and a mathematical connection to the damages awarded, he believed appellate courts would have too little basis to identify manifest error.