ANNAPOLIS, Md. (Legal Newsline) - A Maryland appeals court upheld the state’s ban on “loss of chance” lawsuits, where plaintiffs argue a doctor’s negligence caused someone to die sooner than they otherwise would have, rejecting a man’s claim an oncologist failed to catch a metastatic lesion in his wife’s shoulder blade.
The decision was supported by the Maryland Hospital Association but drew a dissent from two judges, who said it misconstrued Maryland’s wrongful death statute and would deny the relatives of terminally ill patients a chance to sue over maltreatment that hastens their death.
Scott Wadsworth sued Dr. Poornima Sharma and others after his wife Stephanie died in 2017 of breast cancer that had spread to her bones. Stephanie Wadsworth was diagnosed with cancer in 2006 and treated, apparently successfully. In 2013 Dr. Sharma ordered another round of diagnostic testing and found a lesion on her shoulder blade bone that a radiologist diagnoses as arthritis. Dr. Sharma reviewed the scan but didn’t report the results to Wadsworth or order more testing.
Three years later, Wadsworth went to the hospital for a shoulder injury and doctors discovered a malignant lesion on her right clavicle, which they diagnosed as likely originating in her breast tissue. She died a year later, in June 2017, and her husband sued Dr. Sharma for wrongful death.
At a summary judgment hearing, experts said metastatic breast cancer is almost always deadly, regardless of when it is caught. The trial judge concluded the proximate cause of Wadsworth’s death was breast cancer and the wrongful death suit was actually a loss of chance action not allowed under Maryland law. The Court of Special Appeals agreed, ruling that the plaintiffs couldn’t prove Wadsworth had a better than 50% chance of living had she been treated earlier.
The plaintiffs asked for a writ of certiorari on the question of whether a loss of chance lawsuit was allowed. The Maryland Court of Appeals, in a July 15 opinion, agreed it wasn’t.
Under traditional common law, the appeals court explained, a lawsuit died with the plaintiff. But state legislatures began passing wrongful-death statutes in the 1800s to allow the relatives of the dead to sue for negligence; Maryland’s law passed in 1852. That law says a lawsuit can be maintained “against a person whose wrongful act causes the death of another.”
The plaintiff argued his wife would have lived several years longer had Dr. Sharma correctly diagnosed the bone lesion. But the appeals court said that wasn’t equivalent to the doctor “causing” Wadsworth’s death under the Wrongful Death Act.
“The undisputed facts demonstrate that Ms. Wadsworth’s metastatic breast cancer caused her death,” the appeals court concluded.
Judge Shirley Watts dissented, joined by Judge Glenn Harrell. They said the plaintiffs had only to prove Dr. Sharma’s negligence “caused” Wadsworth’s death to occur sooner than it would after proper diagnosis and treatment.
“It was more likely than not that Ms. Wadsworth would have survived for at least six years and eight months but for the negligence in this case,” the dissenting judge wrote. “The Wadsworths are not seeking damages for a mere possibility of survival but instead for the probability that a failure to diagnose caused Ms. Wadsworth to die in June 2017 at a time that she otherwise would not have.”
The dissenters called on the Maryland legislature to change the wrongful death statute to allow lawsuits by terminally ill patients. Twenty-four states allow loss of chance suits and 17 reject it, they observed.
“In thirty-five years, the General Assembly has not passed legislation modifying our decision to reject the loss of chance doctrine,” the majority opinion said, however. “This inaction supports a conclusion that the General Assembly has acquiesced to our holdings.”