Wash. SC reverses summary judgment in med-mal case

By Jessica M. Karmasek | Oct 14, 2011


OLYMPIA, Wash. (Legal Newsline) - The Washington Supreme Court on Thursday reversed a summary judgment order in favor of a group of doctors and two hospitals accused of negligence.

The Court said the case compelled 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.

The majority held that there is such a cause of action.

Linda Mohr suffered a trauma-induced stroke and is now permanently disabled.

She and her husband, Charles, claim that negligent treatment by her health care providers diminished her chances of avoiding or greatly minimizing her disability.

In other words, they claim that negligence caused Mohr a loss of the chance of a better outcome.

In coming to its decision, the Court pointed to a previous case ruling.

In Herskovits v. Group Health Cooperative of Puget Sound, the 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.

The Court, in this case, said it found "no persuasive rationale" to distinguish Herskovits from a medical malpractice claim where the facts involve a loss of chance of avoiding or minimizing permanent disability rather than death.

"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," wrote Justice Susan Owens.

The Court also noted that nothing in the medical malpractice statute precludes a lost chance cause of action.

However, it did note the pitfalls in recognizing such a cause of action, in particular: concerns of an overwhelming number of lawsuits and their impact on the health care system; distaste for contravening traditional tort law, especially regarding causation; and discomfort with the reliance on scientific probabilities and uncertainties to value lost opportunities.

But the concerns are similar to those raised when Herskovits was first decided, it said.

"However, none of these arguments effectively distinguish the Mohrs' claim from Herskovits and seem instead to agitate for its overruling," Owens wrote.

"Now nearly 30 years since Herskovits was decided, history assures us that Herskovits did not upend the world of torts in Washington, as demonstrated by the few cases relying on Herskovits that have been heard by Washington appellate courts."

The Court said a plaintiff making such a claim must prove duty, breach, and that there was an injury in the form of a loss of a chance caused by the breach of duty.

To prove causation, a plaintiff would then rely on established tort causation doctrines permitted by law and the specific evidence of the case, it said.

The majority concluded, in this case, the Mohrs made a prima facie case of the requisite elements of proof and remanded their case to a trial court.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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