We therefore reverse the order of summary judgment as to KMC. She reported a pain level of “7” on a scale of 1 to 10. He also ordered a computerized tomography (CT) scan of her head. at 115, 579 P.2d 970. at 94. Instead, it revealed findings that the radiologist thought “may be secondary to evolving infarct which is in the right middle cerebral artery territory.” 3 The radiologist recommended a magnetic reasoning imaging (MRI) examination. But a chance of a better outcome, by definition, is not the same as an actual better outcome because there is no way to establish that any physical harm in fact resulted from the negligent act or omission of the physician. However, the 33 who would have survived with proper care would be compensated by only 33 1/3 percent of the appropriate damages for the actual injury, i.e., a recovery one-third that which would be necessary to compensate for the actual harm. We do not find this concern to be dissuasive because the nature of tort law involves complex considerations of many experiences that are difficult to calculate or reduce to specific sums; yet juries and courts manage to do so. See Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. ¶ 50 The statute provides that a plaintiff must prove the health care provider failed to exercise the requisite degree "of care, skill, and learning" and this failure "was a proximate cause of the injury complained of." Dr. Grantham prescribed Darvocet, a pain medication, and warned Mr. and Mrs. Mohr about its sedative effect. Necessary - Necessary cookies help make a website usable by enabling basic functions like page navigation and access to secure areas of the website. of the symptoms of right hemispheric stroke." The lost chance doctrine adopted by the majority punishes physicians for negligent acts or omissions that cannot be shown to have caused any actual physical or mental harm. To limit Herskovits to cases that result in death is arbitrary; the same underlying principles of deterring negligence and compensating for injury apply when the ultimate harm is permanent disability. Mrs. Mohr did not report numbness in her left hand to a medical professional until she was seen by Dr. Brooks Watson II, the third doctor to attend her, at approximately 2:00 p.m. on September 1, 2004. Hosp. Dr. Dawson discussed the situation with Dr. Brooks Watson II, and they agreed upon a treatment plan. For this, a CT angiogram was ordered. Loss of a better outcome. The Richland Fire Department responded. More than a minor disagreement in Herskovits is involved, however. ¶ 18 Washington courts have, however, generally declined to extend Herskovits to other negligence claims. . Proximate cause is a required element under Washington's liability law (RCW 7.70.040). Drawing from Stephen F. Brennwald, Comment, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 34 CATH. Does a diagnosis missed this week, but made next week, rise to the level of diminished chance?” Id. ¶ 45 The majority tries to justify the lost chance doctrine on the ground that it serves the tort principles of deterring negligence and compensating for injury when "the ultimate harm is permanent disability." Ctr., 164 Wash.2d 261, 266, 189 P.3d 753 (2008). Dr. Brian Dawson was the attending emergency room physician that morning. What about a case where experts could present “evidence ... that an MRI misread on Monday, but accurately discerned on Friday, perhaps gives rise to an infinitesimal loss of a chance to recover. Rivas v. Overlake Hosp. Id. The standard formulation for proving proximate causation in tort cases requires, “first, a showing that the breach of duty was a cause in fact of the injury, and, second, a showing that as a matter of law liability should attach.” Harbeson v. Parke–Davis, Inc., 98 Wash.2d 460, 475–76, 656 P.2d 483 (1983). Putman v. Wenatchee Valley Med. Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 406 (Tex.1993) (emphasis added). “Washington recognizes loss of chance as a compensable interest.” Shellenbarger v. Brigman, 101 Wash.App. Id. 727, 729–30, 496 P.2d 571 (1972). This is a misconception of the requirements of medical malpractice tort law. Berger, 144 Wash.2d at 105, 26 P.3d 257. It is incorrect. See, e.g., Shellenbarger, 101 Wash.App. ¶ 7 Mrs. Mohr is now permanently brain damaged; a quarter to a third of her brain tissue was destroyed. However, the negligence alleged here concerns the provision of medical services and is well within the scope of the apparent agency relationship alleged between *499 the physicians and KMC. ¶ 45 The majority tries to justify the lost chance doctrine on the ground that it serves the tort principles of deterring negligence and compensating for injury when “the ultimate harm is permanent disability.” Majority at 495. ¶ 12 The medical malpractice statute requires the same elements of proof as traditional tort elements of proof: duty, breach, injury, and proximate cause. Mrs. Mohr's medical records indicate that the “MRI ... revealed a right frontoparietal CVA.” CP at 123. The Mohrs' claim relies, at least in part, on a medical malpractice cause of action for the loss of a chance. The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. Majority at 493. 6 (1979) Mathias v. Accor Economy Lodging, Inc. 347 F.3d 672 (2003) Mavrikidis v. Petullo. The majority holding rests on the fiction that the “injury” is actually the loss of a chance of a better outcome. The court summarized that. 10, at 155–56, § 15.32, at 488 (3d ed. Cf. For the reasons discussed next, as it relates to the facts of this case, we reverse the order of summary judgment. ¶ 51 In considering the comparable Alaska statute, which like ours requires a plaintiff to prove the health care provider failed to exercise the proper standard of care and as a “proximate result of this” failure “the plaintiff suffered injuries that would not otherwise. many jurisdictions are like Kansas, in that the issue has only come up in a loss of survival case or a loss of a better recovery case.... We have found no authority or rational argument which would apply the loss of chance theory solely to survival actions or solely to loss of a better recovery actions and not to both. Id. 2006) ("Washington courts recognize the doctrine of `loss of a chance' as an exception to a strict application of the but-for causation test in medical malpractice cases."). Id. ¶ 16 Rather than looking to the causation element, the plurality opinion in Herskovits focused instead on the nature of the injury. The inequity is obvious. 747, 779 n.254 (1985), the Maryland court described a hypothetical example involving 99 cancer patients, each with a 1/3 chance of survival (the example can also be applied to facts involving a chance of a better outcome, rather than survival), each of whom received negligent treatment, and all of whom died. Mrs. Mohr has not sued the Richland Fire Department, ambulance, or the EMPs. It involves the "determination of whether liability should attach as a matter of law given the existence of cause in fact." We do not find this concern to be dissuasive because the nature of tort law involves complex considerations of many experiences that are difficult to calculate or reduce to specific sums; yet juries and courts manage to do so. Less disability, less neglect, less . However, as the plurality noted in Herskovits, "[t]he word `cause' has a notoriously elusive meaning (as the writings on legal causation all agree)." Cf. During the exam, Mrs. Mohr did not report or demonstrate any acute distress, swelling of the head, numbness, or neck pain. at 11. majority at 493 (citing Berger, 144 Wash.2d at 103, 26 P.3d 257). The appellants offer no evidence or testimony, however, that Drs. “For instance, what is a ‘late diagnosis'? Whether there is a cause of action for a lost chance of a better outcome in the medical malpractice context is a question of law, which we review de novo. at 792–95, 580 A.2d 206. In the other 66 cases, where the decedents died as a result of the preexisting cancer and not as a result of the negligence, the patients would be overcompensated for actual injury to the extent of the entire one-third recovery. ¶ 70 Mrs. Mohr was seen in the emergency room by Dr. Dale Grantham. A plaintiff meeting the lower standard of causation would not necessarily satisfy the "more probable than not" standard adhered to in the plurality. Consequently, the appellants have not made a showing sufficient to establish the existence of an element essential to their case, and on which they will bear the burden of proof at trial: proximate cause. ¶ 3 Following those neurological tests, however, Mrs. Mohr reported and was observed to have neurological symptoms, including being wobbly on her feet and having severe pain after being administered pain medication. Id. at 619, 664 P.2d 474 (Dore, J., lead opinion), 634-35 (Pearson, J., plurality opinion). For this reason, and in service of underlying tort principles, this court and others have recognized some limited exceptions to the strict tort formula, including recognition of lost chance claims. CP at 123. October 13th, 2011, Precedential Status: This is semantic pretense. At that point, Mrs. Mohr could not walk herself to or from the car and had to be carried to bed by her husband when they arrived home. As in Adamski, we find that a hospital may be, depending on the facts found by a jury, liable for the negligence of its contractor doctors, who are held out to be agents of the hospital. Hosp., 20 Wash.App. Matsuyama, 452 Mass. at 611, 664 P.2d 474 (Dore, J., lead opinion). "Washington recognizes loss of chance as a compensable interest." ¶ 6 Mrs. Mohr's sons finally arranged a transfer and transport to Harborview Medical Center. 19 Mohr v. Grantham No. Dr. Brian Dawson was the attending emergency room physician that morning. Id. Stoneman v. Wick Constr. ¶ 14 The lead opinion, signed by two justices, and the concurring opinion, which garnered a plurality, agreed on the fundamental bases for recognizing a cause of action for the loss of a chance. It stated that "courts generally look to all of the facts and circumstances to determine if the hospital and doctor enjoy such a 'significant relationship' that the rule of respondeat superior ought to apply." Laws of 2011, ch. An "infarct" is an area of coagulation necrosis in tissue resulting from obstruction of the local circulation by a thrombus (blood clot) or embolus (foreign particle circulating in the blood). See RCW 7.70.040. Under this formulation, a plaintiff bears the burden to prove duty, breach, and that such breach of duty proximately caused a loss of chance of a better outcome. The Court of Appeals went on to confirm that, even in loss ofa chance By way of example, if the loss is a forty percent chance of survival, the plaintiff recovers forty percent of what would be compensable under traditional tort recovery. at 685, 183 P.3d 1118 (following Daugert and finding “no authority supporting the application of the ‘substantial factor’ definition of proximate cause to a negligence or strict liability action involving a contaminated food product”); Sorenson v. Raymark Indus., Inc., 51 Wash.App. The South Dakota legislature expressly abrogated the state supreme court's adoption of the lost chance doctrine. With this semantic leap—essentially a fiction—the causation problem is fixed. Though divided by different reasoning, this court reversed the trial court, finding that Herskovits's lost chance was actionable. It was arranged for Mrs. Mohr to be “life-flighted” to Harborview Medical Center. The Mohrs have made a prima facie case of injury: lost chance of a better outcome. With emphasis, the lead opinion agreed, stating that “ ‘[ n ] o matter how small that chance may have been—and its magnitude cannot be ascertained—no one can say that the chance of prolonging one's life or decreasing suffering is valueless.’ ” Id. P consented to surgery on her right ear. Majority at 495. ¶ 43 The lost chance doctrine contravenes the long-standing rule that a verdict in a medical malpractice action must not rest on “ ‘conjecture and speculation.’ ” Douglas v. Bussabarger, 73 Wash.2d 476, 505, 438 P.2d 829 (1968) (internal quotation marks omitted) (quoting Glazer v. Adams, 64 Wash.2d 144, 148, 391 P.2d 195 (1964)). at 209–10, 873 P.2d 175. Did the trial court properly grant summary judgment for all defendants under CR 56(c)? majority at 492. Such limitation is common: “[T]he courts that have accepted lost opportunity as cognizable harm have almost universally limited its recognition to medical-malpractice cases.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 cmt. ¶ 58 In addition, even courts rejecting the doctrine have noted “ ‘appealing’ ” arguments exist in favor of the lost chance doctrine, e.g., id. At the same time, medical science and technology are advancing at a phenomenal pace and our expectations based upon these advancements rise as they advance. ¶ 53 The same is true in Washington. 438, 448, 177 P.3d 1152 (2008) (citing McLaughlin v. Cooke, 112 Wash.2d 829, 837, 774 P.2d 1171 (1989)). ¶ 33 In Adamski, the Court of Appeals considered several factors that it found relevant to the question of whether an independent-contractor physician was an apparent agent of the hospital. Dr. Grantham informed one of Mrs. Mohr's physician sons, Dr. Brandt Mohr, by phone that he would carry out another neurological assessment before discharging. ¶ 30 Finally, KMC separately asserts that the trial court's order of summary judgment in its favor should be affirmed because it is not vicariously liable for the negligence of the codefendant physicians. Herskovits, 99 Wash.2d at 616, 664 P.2d 474 (additionally noting the Hamil court's reliance on the Restatement (Second) of Torts § 323 (1965), which provides that one who renders services to another, necessary for the protection of that person, is liable if “his failure to exercise [reasonable] care increases the risk of [physical] harm”). resulting from obstruction of the local circulation by a thrombus [ (blood clot) ] or embolus [ (foreign particle circulating in the blood) ]." Expert witnesses testified that had Shellenbarger received nonnegligent testing and early diagnosis, which would have led to treatment, he would have “had a 20 percent chance that the disease's progress would have been slowed and, accordingly, he would have had a longer life expectancy.” Id. ¶ 60 All of these matters are public policy considerations for the legislature. ¶ 61 Another issue is the inequity of applying the lost chance doctrine in the medical field. The majority simply redefines the injury as the lost chance. Id. ¶ 73 Dr. Grantham returned at 7:56 p.m. to speak with Mrs. Mohr and her husband. Shellenbarger v. Brigman, 101 Wash.App. The Mohrs left for their home at 8:20 p.m. ¶ 74 At 6:32 a.m. the following morning, Mr. Mohr called the Richland Fire Department. Treating the loss of a chance as the cognizable injury “permits plaintiffs to recover for the loss of an opportunity for a better outcome, an interest that we agree should be compensable, while providing for the proper valuation of such an interest.” Lord v. Lovett, 146 N.H. 232, 236, 770 A.2d 1103 (2001). Miller v. Jacoby, 145 Wash.2d 65, 71, 33 P.3d 68 (2001). Lord v. Lovett, 146 N.H. 232, 236, 770 A.2d 1103 (2001). ¶ 73 Dr. Grantham returned at 7:56 p.m. to speak with Mrs. Mohr and her husband. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. Methods Two experimental games were completed in temperate (∼21°C; CON) and hot ambient conditions (∼43°C; HOT). In Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609, 611, 614, 664 P.2d 474 (1983) (Dore, J., lead opinion), this court recognized the lost chance doctrine in a survival action when the plaintiff died following the alleged failure of his doctor to timely diagnose his lung cancer. How Physicians Insurance Is Responding to Changes in the Health Care Environment Mary-Lou A. Misrahy, ARM President and CEO Health care continues to present challenges for physicians, clinics, and hospitals here in the Northwest. In Shellenbarger, the Court of Appeals reversed summary judgment of a medical malpractice claim of negligent *495 failure to diagnose and treat lung disease from asbestos exposure in its early stages. He also fed her at this time and noted that she was alert and able to walk to the bathroom, albeit “slightly wobbly on foot.” Clerk's Papers (CP) at 91, 94. The Lost Chance Doctrine. at 115, 579 P.2d 970. To establish proximate cause, the plaintiff must show both “cause in fact” (that the injury would not have occurred but for the act in question) and “legal causation.” Ayers v. Johnson & Johnson Baby Prods. ¶ 57 What about in the very case before this court, where we are not considering the passage of weeks, or even days, but of hours? [6] The record does not indicate the numerous patients Drs. *496 ¶ 21 We note that, significantly, nothing in the medical malpractice statute precludes a lost chance cause of action. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. Instead, the loss of a chance is the compensable injury. failure to diagnose and treat lung disease from asbestos exposure in its early stages. 1 • March 2006 It was arranged for Mrs. Mohr to be "life-flighted" to Harborview Medical Center. Washington state had previously recognized the doctrine in death cases. 2d, 635. Several states have rejected the doctrine. Another finger stick glucose sample was taken, and a nurse applied antibacterial ointment and dressed Mrs. Mohr's leg wound. Moreover, calculation of a loss of chance for a better outcome is based on expert testimony, which in turn is based on significant practical experience and "on data obtained and analyzed scientifically . [5] The majority effectively treats Herskovits as binding precedent because although a six-member majority of the court disagreed on how the lost chance doctrine should be applied in a case where death ensued, it agreed that the doctrine should be adopted. Herskovits, 99 Wash.2d at 634, 664 P.2d 474 (Pearson, J., plurality opinion) (“[T]he best resolution of the issue before us is to recognize the loss of a less than even chance as an actionable injury.”). of the examination, the court's conclusion should be that extending the lost chance doctrine is incompatible with RCW 7.70.040 6 and that whether the doctrine should be adopted is a question that must be decided by the legislature. (quoting W. Telepage, Inc. v. Dep't of Financing, 140 Wash.2d 599, 608, 998 P.2d 884 (2000)). ¶ 37 Black letter negligence law requires proof on a more probable than not basis that the injury was caused by the negligence of another. However, the Mohrs' and KMC's competing contentions regarding apparent agency and resulting vicarious liability present a question of fact that is not disposable on summary judgment as a matter of law. A known cause of strokes is "formation of an embolus or thrombus that occludes an artery." . King v. Riveland, 125 Wash.2d 500, 507, 886 P.2d 160 (1994). In support of their claim, the Mohrs presented the family's testimony, including her two sons who are doctors, and the testimony of two other doctors, Kyra Becker and A. They tried to get both Dr. Dawson and then, after her transfer, Dr. Watson to order a CT angiogram. (quoting W. Telepage, Inc. v. Dep't of Financing, 140 Wash.2d 599, 608, 998 P.2d 884 (2000)). Courts should not force a given construction by imagining a variety of alternative interpretations. 707 A.2d 977 (1998) McCann v. Wal-Mart Stores, Inc. 210 F.3d 51 (2000) Medcalf v. Washington Heights Condominium Ass'n, Inc. 747 A.2d 532 (2000) Minnich v. Med-Waste, Inc. 564 S.E.2d 98 (2002) Mohr v. Grantham. This case compels consideration of whether, in the medical malpractice context, there is a cause of action for a lost chance, even when the ultimate result is some serious harm short of death. See, e.g., Daugert v. Pappas, 104 Wash.2d 254, 260-62, 704 P.2d 600 (1985) (declining to apply Herskovits in a legal malpractice claim); Fabrique, 144 Wash.App. Id. at 17, 890 N.E.2d 819. ¶ 50 The statute provides that a plaintiff must prove the health care provider failed to exercise the requisite degree “of care, skill, and learning” and this failure “was a proximate cause of the injury complained of.” RCW 7.70.040. ¶ 71 Dr. Grantham performed a physical exam. [2] Mrs. Mohr did not report numbness in her left hand to a medical professional until she was seen by Dr. Brooks Watson II, the third doctor to attend her, at approximately 2:00 p.m. on September 1, 2004. The inequity is obvious. of Puget Sound, 99 Wash.2d 609, 619, 664 P.2d 474 (1983) (Dore. Therefore, the rule in Jorgenson v. Vener, 2000 SD 87, 616 N.W.2d 366 (2000) is hereby abrogated. ¶ 87 Recovery on the basis of “a lost chance of a better outcome” from these targeted medical care providers is highly speculative and places an impossible burden on doctors and hospitals.7 Order of Certification at 1. Since Herskovits, the majority of states that have considered the lost chance doctrine have adopted it, although with varying rationales. See King, supra, 28 U. Mem. [6] The Restatement characterizes the Weymers holding as "without any good explanation." Dr. Grantham sutured these lacerations at 6:36 p.m. We hold that there is such a cause of action and, accordingly, reverse the order of summary judgment. Berger v. Sonneland, 144 Wash.2d 91, 103, 26 P.3d 257 (2001). Dr. Grantham noted that Mrs. Mohr was in “good condition, stable condition and improved condition.” Id. RCW 7.70.040.3 Expert testimony is generally required to establish the standard of care and causation. RCW 7.70.040. Similarly, the published model jury instructions enumerate seven relevant factors for the determination of apparent agency in the hospital and independent-contractor physician context. ¶ 70 Mrs. Mohr was seen in the emergency room by Dr. Dale Grantham. See, e.g., Adamski v. Tacoma Gen. ¶ 39 The majority's holding is also contrary to RCW 7.70.040. The chapter does not define "proximate cause" or "injury." Specifically, she was first found to have an “evolving infarct ... in the right middle cerebral artery territory,” Clerk's Papers (CP) at 119, which relates to a cause of a stroke. This reasoning of the Herskovits plurality has largely withstood many of the concerns about the doctrine, particularly because it does not prescribe the specific manner of proving causation in lost chance cases. 1920)). The Late Late Show with James Corden Recommended for you 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. See Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. This court may sustain a trial court ruling on any correct ground. Smith, 175 Vt. at 381, 833 A.2d 843; Gooding v. Univ. Statistically, if all had received proper treatment, 33 would have lived and 66 would have died. ¶ 38 The majority claims that the tort principles of deterrence and compensation are served by adopting the doctrine. ¶ 32 KMC and the Mohrs dispute whether the Mohrs could and did reasonably believe that any of the codefendant physicians were employees or agents of KMC. The two positions were not and are not the same. Brain damaged ; a quarter to a THIRD of her brain tissue was.. Sought another medical opinion, I dissent, 28 U. Mem please log in sign. ( `` Rather than looking to the emergency room physician that morning Appeals went on to that! Found it more analytically sound to conceive of the Herskovits plurality has withstood the broad policy criticisms raised it... Can subject a hospital to vicarious liability for the reasons discussed next as. Is there a cause of action for a Free trial to access this feature means... Kemper v. Gordon, 272 S.W.3d 146, 152 ( Ky.2008 ). [ 2 ] the of... Herskovits applies to lost chance cause of strokes is `` an area of coagulation necrosis in medical... A “ ‘ subverts the deterrence objectives of tort liability for PHYSICAL and harm. 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