For The Defense, July 2010 - DRI Today

should have an opportunity to consider testimonythat the alleged negligence diminisheda patient’s chances for recovery orsurvival, even if he or she is unable to provideexpert testimony that the negligencemore likely than not caused the patient’sloss. Courts have justified this relaxed burdenof proof on various grounds.One justification offered by courts insupport of the loss of chance doctrine isthat the relaxed burden of proof forestallsinjustice by preventing arbitrary distinctionsamong plaintiffs based on their abilityto locate witnesses willing to testify thatpatients had a 51 percent chance, ratherthan a 49 or 50 percent chance, of achievingbetter outcomes. Anyone who regularlyhandles medical liability cases knows,however, that this is a polemical argumentbecause it is exceedingly rare to encountera plaintiff with a decent causation argumentwhose claim fails because he or shecannot find an expert to testify that adifferent course of treatment would haveresulted in at least a 51 percent chance ofachieving a better outcome.Courts have also asserted that the loss ofchance doctrine serves a purpose becauserequiring testimony to meet the traditionalstandard of proof under all circumstances,and in particular, when physicianshave been clearly negligent, would providethem with a “blanket release fromliability” merely because the injured partieshad poor prospects even without malpractice.Herskovits v. Group Health Coop.of Puget Sound, 664 P.2d 476 (Wash. 1983).These courts have concluded that permittingpatients to recover damages by showingonly that malpractice diminished theirprospects for a better result provides aneffective deterrent to negligence in thetreatment of patients whose prospects arepoor. McMackin v. Johnson County HealthcareCtr., 73 P.3d 1094, 1099 (Wyo. 2003).In addition, courts have said that a courtshould not permit a defendant to raise conjecturesabout a patient’s lost opportunitieswhen the defendant’s own conduct eliminatedthe possibility of their realization.Courts following this line of reasoning haveconcluded that a patient’s loss of chance fora better outcome should be recognized asan injury in and of itself.Matsuyama v. Birnbaum exemplifieshow some courts have been swayed by thesiren song of the loss of chance doctrine.890 N.E.2d 819 (Mass. 2008). A close readingof the decision, however, also providesclues about how a lawyer can challenge theloss of chance doctrine even in the jurisdictionswhere it is the law. Matsuyama executedan end-run around all the argumentsin favor of traditional causation analysisby a clever turn of legal legerdemain. Thecourt opined that the loss of chance doctrinewas “not a theory of causation, but…a theory of injury.” 890 N.E.2d at 832. Thecourt then held that that injury—the lossof chance for a better outcome—had to beproved by a preponderance of the evidence,providing the appearance of adherenceto traditional causation proof rules whileactually making a plaintiff friendly pivot.As the next section will address, however,lawyers may use the court’s reasonssupporting this approach to attackattempts by plaintiffs to invoke this doctrine.For example, the court reasonedthat “The key is the reliability of the evidenceavailable to the fact finder.” Id. at 833.Thus, even in loss of chance jurisdictions,plaintiffs’ experts may remain vulnerableto exclusion based on the reliability of thesupport that they provide for their opinions.Also, the court rested its adoption ofthis doctrine, in part, on the reasoning that“Although there are few certainties in medicineor in life, progress in medical sciencenow makes it possible, at least with regardto certain medical conditions, to estimate apatient’s probability of survival to a reasonabledegree of medical certainty.” Id. at 832.Fighting the Loss of Chance DoctrineLawyers practicing in jurisdictions thathave not adopted the loss of chance doctrineshould aggressively analyze everyangle of possible causation defenses withan eye to possibly moving for summaryjudgments. Study the medical literature,consult with your client on the scientificbases for his or her decisions, and exploityour retained experts’ knowledge of theFor The Defense n July 2010 n 15