Washington Recognizes Malpractice Tort for Loss of Chance of Better Outcome

By David M. Norman

No reason exists to distinguish lost chance to avoid disability rather than death, the Court held.

A medical-malpractice plaintiff may sue for a “loss of chance for a better outcome,” the Washington Supreme Court recently held. In Mohr v. Grantham, 172 Wn. 2d 844, 262 P.3d 490 (2011), the Court expanded the “loss of chance of survival” cause of action established in Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609 (1983), to situations involving not only the death of the patient, but where the patient becomes permanently disabled.

In Mohr, the patient was injured in a car accident and sought treatment at a medical center. After neurological tests were performed, the patient exhibited neurological symptoms, including unsteadiness on her feet, pain, and lethargy. Early the next morning, the patient was transported to the emergency room of the same medical center; she was diagnosed as having a stroke. Over the next several hours, the patient’s condition significantly deteriorated, and there were multiple delays in her treatment, including delays in ordering a CT angiogram and beginning anticoagulant therapy. By the time the patient was to be transported to Harborview Medical Center, she had suffered permanent brain damage.

The patient and her husband sued, claiming the doctors’ negligence substantially diminished the patient’s chance of recovery and to minimize any potential disability. Relying on Herskovits, the trial court granted defendants’ motion for summary judgment. Plaintiffs appealed to the lower appellate court, which certified the case for the State Supreme Court’s review. The Herskovits Court reversed the trial court, concluding that a “lost chance” cause of action is not confined to circumstances where the patient ultimately dies.

In reaching this decision, the Mohr Court discussed at length Herskovits v. Group Health, the seminal case in which the Court held for the first time that a plaintiff might be entitled to damages for a loss of chance of survival based upon a defendant’s failure to timely diagnose, even where the plaintiff already had a less than 50-percent chance of survival based on the existing injury.  The “lost chance” was itself the cognizable injury.

The Mohr Court found no persuasive rationale to distinguish Herskovits from a medical-malpractice claim where the facts involve a loss of chance to avoid or minimize permanent disability rather than death. Accordingly, recognizing the doctrine in cases arising from permanent disability serves the same underlying principles of deterring negligence and compensating for injury.

Relying on the reasoning in Herskovits, the Mohr Court further concluded that such an injury must be demonstrated through the application of traditional proximate cause principles, i.e., cause in fact and legal causation, both on a more- probable-than-not basis, consistent with what is normally required in medical malpractice cases.

The Mohr Court again relied on the Herskovits decision to establish a proportional approach to the calculation of damages.  That is, if the plaintiff lost a 40-percent chance of survival, he or she would be entitled to only 40 percent of what would be compensable “under the ultimate harm of death or disability, such as lost earnings.” This showing of a loss of chance for a better outcome must be based on expert testimony.

The Mohr Court concluded that the defendants should not have been granted summary judgment because the plaintiffs had made a prima facie showing of negligence through the testimony of two medical experts.  The experts testified that if plaintiff had been retained for observation overnight, her condition would have been earlier discovered to be a stroke.

Further, the doctors each testified that had the patient received non-negligent treatment at various points, she would have had a 50- to 60-percent chance of a better outcome, including the possibility of no disability whatsoever if she had been properly treated.

Two forceful dissenting opinions, authored by Chief Justice Barbara Madsen and Justice James Johnson, respectively, directly challenged the majority’s willingness to recognize the “loss of chance of a better outcome” as the injury itself.

Chief Justice Madsen, in particular, voiced concerns that the majority’s holding would allow for liability upon a showing of the mere possibility that the physician’s negligence caused harm, in derogation of traditional causation principles.  She also concluded that the Legislature is the appropriate body to recognize such a cause of action, considering the wide-reaching policy implications.

Justice James Johnson echoed these concerns in his dissenting opinion, interpreting the issue as one of pure statutory interpretation; because the medical negligence statute requires a showing of proximate cause of a physical injury and the plaintiffs failed to meet their burden to demonstrate a prima facie action as a matter of law.

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