Summary
The Supreme Court of Washington held that a medical malpractice plaintiff may pursue a lost-chance-of-a-better-outcome claim when the ultimate harm is serious injury short of death. The court adopted the Herskovits plurality’s view that the lost chance itself is the compensable injury and reversed summary judgment because the plaintiffs presented evidence of negligence, causation, and a diminished chance of a better outcome.
Topics
Practice areas
Questions Presented
- Whether Washington recognizes a medical-malpractice cause of action for loss of a chance of a better outcome when the ultimate harm is serious injury or permanent disability rather than death.
- Whether the trial court properly granted summary judgment under Washington Civil Rule 56(c) on the grounds that the Mohrs failed to establish traditional but-for causation and damages.
- Whether Kadlec Medical Center could be held vicariously liable for the alleged negligence of contractor physicians under an apparent-agency theory as a matter suitable for summary judgment.
Holdings
- Washington recognizes a cause of action in medical malpractice for loss of a chance of a better outcome when the ultimate harm is a serious injury short of death. The compensable injury is the lost chance itself, and the plaintiff must prove duty, breach, and that the breach proximately caused the loss of that chance.
- A plaintiff asserting loss of a chance of a better outcome must prove duty, breach, an injury consisting of the lost chance, and proximate causation under established tort causation doctrines. The plaintiff need not prove that the provider's negligence more probably than not caused the ultimate physical disability itself.
- Summary judgment was improper because, viewed in the light most favorable to the Mohrs, the expert testimony established a prima facie showing of duty, breach, injury in the form of a lost chance, and causation.
- Kadlec Medical Center was not entitled to summary judgment because whether the Mohrs reasonably believed the treating physicians were agents of the hospital presented a factual question.
Key quotations
“We hold that Herskovits applies to lost chance claims where the ultimate harm is some serious injury short of death.” (172 Wash. 2d at 857)
“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.” (172 Wash. 2d at 857-858)
“Instead, the loss of a chance is the compensable injury.” (172 Wash. 2d at 859)
“Thus, the notice that the Mohrs received disclaiming an agency relationship between KMC and the treating physicians is but one factor to consider.” (172 Wash. 2d at 862)
Factual background
Linda Mohr suffered a hypoglycemic event, crashed her vehicle, and was initially treated at Kadlec Medical Center with apparently normal neurological tests. Despite continuing neurological symptoms, she was discharged and returned to the hospital the next morning with worsening symptoms; she was later diagnosed with a stroke and carotid artery dissection. The Mohrs presented expert testimony that the treating providers breached the standard of care and that timely, nonnegligent treatment would have given Linda a 50 to 60 percent chance of a better outcome, including substantially less disability or no disability. Linda suffered permanent brain damage, and the Mohrs sued the treating physicians, the hospital, and an affiliated entity.
Procedural history
The Mohrs sued health care providers and Kadlec Medical Center, alleging negligent treatment diminished Linda Mohr's chance of avoiding or minimizing permanent disability. The superior court granted summary judgment because the Mohrs could not establish traditional but-for causation and because the court was hesitant to extend Herskovits v. Group Health Cooperative of Puget Sound beyond death cases. The Supreme Court reversed and remanded for further proceedings.
Remand instructions
Reverse the summary-judgment order and remand to the trial court for further proceedings under the lost-chance doctrine, including proceedings on the factual issues concerning the alleged negligence, causation, damages, and Kadlec Medical Center's apparent agency.