Fennell v. Southern Maryland Hospital Center, Inc. , 320 Md. 776 ( 1990 )

ADKINS, Judge,

dissenting.

Chiefly because of a theory of damages based on loss of a chance does not meet its test of mathematical precision, the majority rejects that approach to the calculation of damages. I respectfully dissent. Tort law is not about mathematical niceties; it has to do with fairness to fault-free victims who have suffered harm by reason of the tortious acts or omissions of others. It is a basic principle of our tort system that those who can prove they have been so harmed should be compensated. Why should we reject that principle when the harm is loss of a chance of survival that is less than 51%? Is it fair that one who can show that a doctor’s negligence had a 51% possibility of producing the harm complained of can recover full damages whereas if the proof is only of a 50% possibility, there can be no recovery whatsoever? Obviously not.

For the reasons stated by Professor King, King, Causation, Valuation and Chance in Personal Injury Torts Involving Pre-existing Conditions and Future Consequences, 90 Yale L.J. 1353 (1981). I would allow loss of chance damages in survival actions. See also, e.g., Feldman, Chances as Protected Interests: Recovery for the Loss of a Chance and Increased Risk, 17 U.Balt.L.Rev. 139 (1987). Other jurisdictions have done so. See, e.g., Sanders v. Ghrist, 421 N.W.2d 520, 523 (Iowa 1988); DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa 1988); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476-477 & n. 25 (Okla.1987); Herskovits v. Group Health Co-op., 99 Wash.2d 609, 634, 664 P.2d 474, 487 (1983) (Pearson, J., concurring); Boody v. United States, 706 F.Supp. 1458, 1465-1466 (D.Kan.1989).

The non-mathematical arguments offered by the majority in support of its holding are equally unpersuasive.

The use of statistical evidence is not limited to loss of chance cases. A great deal of evidence, especially medical expert testimony, is based on less than the certainty the majority seems to desire. The elitist notion that Maryland juries would be unable to cope with loss of chance evidence, 320 Md. at 790-791, 580 A.2d at 213-214, surely would surprise those who adopted the second paragraph of Article 23 of our Declaration of Rights.¹

As to speculation about “ ‘the substantial expansion of tortfeasor liability and the accompanying societal costs that will be impressed by this new cause of action,’ ” Id. at 792, 580 A.2d at 214 (quoting Gaver v. Harrant, 316 Md. 17, 31, 557 A.2d 210, 217 (1989)), the majority should not be so quick to adopt the parade of horribles so facilely conjured up by the defense bar. It is not inevitable that “societal costs” (i.e. insurance premiums) would be increased should this approach to damages be applied, or that new floodgates of litigation will open. See Feldman, 17 U.Balt.L.Rev. at 150-151. And what of the social cost of failing to compensate those who have been harmed by tortious deprivation of loss of a chance of survival of less than 51%? Even if “social costs” may increase, “that fact alone is not reason enough to deny recovery to a class of plaintiffs that deserves a remedy consistent with the public policy of this State.” Gaver, 316 Md. at 45, 557 A.2d at 225 (Adkins, J., dissenting).

And despite the majority’s assertion to the contrary, 320 Md. at 794, 580 A.2d at 215, adoption of the loss of a chance theory of damages is not contrary to legislative policy. The thrust of legislative policy in the tort claim area has been largely directed to a cap on damages (Courts Article § 11-108), and the elimination of frivolous claims (Courts Article § 3-2A-04(b)). To allow recovery for a properly supported loss of a chance does not conflict with these measures.

Nor is this matter one that must be left solely to the legislature. The majority, as it must, recognizes our power to modify the common law, and suggests that we may do so only when “necessary due to changing circumstances or increased knowledge.” 320 Md. at 793, 580 A.2d at 214. In Adler v. American Standard Corp., 291 Md. 31, 42-43, 432 A.2d 464, 471 (1981) we modified the common law by recognizing a cause of action for abusive discharge. We did so largely because of a perceived need to protect employees at will from unfair firing — i.e. on the ground of fairness. Id. at 42, 432 A.2d at 470. The only changed circumstance we mentioned was that “a growing number of jurisdictions ... have recognized wrongful discharge as a new cause of action.” Id. at 43, 432 A.2d at 471.

Both of those factors exist here. I would permit a damages claim based on loss of a chance of survival at least above the de minimis level. Consequently, I would reverse the judgment of the Circuit Court for Prince George’s County.

1 . "The right of trial by jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five hundred dollars, shall be inviolably observed."