Loss of a Chance in Medical Malpractice Cases – Maine May Be Ready to Join the Majority

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In a negligence case, the plaintiff must prove that the negligent acts or omissions of the defendant more likely than not caused the injury. Defendants in medical malpractice cases have argued, based on this standard of proof, that in any case where the plaintiff cannot prove that the malpractice deprived her of a greater than 50% chance of a better outcome, the plaintiff cannot meet her burden of proof on causation and can therefore not recover. For example, if a physician’s failure to diagnose a patient’s cancer led to a delay in treatment that deprived the patient of a 51% chance of survival, there is full recovery of wrongful death damages. However, if the patient was deprived of only a 50% chance of survival, defendants argue that there should be no recovery because it is not more likely than not that the negligence caused the injury. This faulty application of the preponderance standard has come to be called the “all-or-nothing” rule. Two different approaches have emerged that reject the harshness of this ill-conceived rule. On September 12, 2013, the Law Court held oral argument in the case of Nickerson v. Carter, Law Docket No. CUM-12-562, which raises the issue of whether Maine should join those states that have rejected the all-or-nothing rule. That issue was alluded to, but not decided, by the Law Court in Phillips v. Eastern Maine Medical Center, 565 A.2d 306 (Me. 1989).

Many courts, influenced by Professor Joseph King’s seminal article Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981), have recognized the error of the all-or-nothing rule and the dramatic unfairness that it imposes on patients injured by malpractice. As Professor King pointed out, the all-or-nothing rule was a product of the confusion by some courts of the concepts ofcausation of the injury and valuation of the injury. To cure the unfairness caused by that confusion, Professor King articulated what he termed the loss of a chance doctrine. Under that doctrine, the loss of the chance of a more favorable outcome is considered an injury even if that chance is less than 50%, and the plaintiff can recover damages for that loss in proportion to the lost chance. For example, the wrongful death beneficiaries of a patient deprived of a 45% chance of survival by a negligent delay in diagnosing her cancer would recover 45% of the damages suffered.

Such a rule is a recognition that it is only because the physician negligently failed to timely diagnose or treat the patient’s condition that it is impossible to say what the outcome would have been if the physician had not been negligent. The patient, it is believed, should not be deprived of recovery by the very uncertainty that the negligence of the physician has created. Rather, the lost chance of a better outcome is itself an injury, which is valued in proportion to the probability of a better outcome of which the patient has been deprived. Among the latest of the many courts to adopt this form of the loss of a chance theory is the Massachusetts Supreme Judicial Court. Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819 (2008).

Other courts have taken a different approach and adopted a so-called “relaxed causation” rule under which the injured patient is entitled to recover her full damages if she proves, by a preponderance of the evidence, that the physician’s negligence has deprived her of a “substantial chance” or “substantial possibility” of a better outcome. In this form, the theory treats the underlying disease or condition and the physician’s negligence as concurrent causes, placing the burden of proof that the latter was not a substantial factor in causing the harm on the negligent defendant. Cf., Lovely v. Allstate Ins. Co., 658 A.2d 1091 (Me. 1995). A substantial chance need not be a greater than 50%. See, e.g., Verdicchio v. Ricca, 179 N.J. 1, 32- 33, 843 A.2d 1042, 1062 (2004) (jury free to conclude that increased risk caused by physician’s negligence was a substantial factor in bringing about patient’s cancer death, without requirement that patient prove chance of survival exceeded 50%). While the two versions of the loss of a chance theory operate differently, both are based on the recognition that the loss of a chance of a better outcome, even if that chance is 50% or less, is a compensable injury.

Both versions of the loss of a chance theory have been presented to the Law Court in Nickerson. Berman & Simmons has filed an amicus brief on behalf of the Maine Trial Lawyers Association arguing for the adoption of some version of the theory. By adopting either version, Maine would join the majority of jurisdictions that have rejected the unfairness of the all-or-nothing rule in medical malpractice cases. We are hopeful that the Law Court will take this opportunity to bring Maine into that majority and permit recovery by Maine people who have been deprived of the loss of a chance of a more favorable result by the negligence of medical practitioners or providers.

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