Estate of Sherman v. Millhon ( 1995 )

While I concur in the judgment rendered today, I do not agree with the majority's interpretation of Cooper v. Sisters ofCharity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97, as one rejecting recovery for loss of chance of survival. I view the Cooper case as recognizing the theory of loss of chance, a form of medical malpractice, but in a limited form, requiring evidence showing that the patient probably would have survived with proper diagnosis and treatment. And as stated in the syllabus of Stinson v. England (1994), 69 Ohio St.3d 451,633 N.E.2d 532, in referring to the Cooper case, "An event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue." We have, therefore, given recognition to the theory of recovery for loss of chance of survival, but limited its viability as a form of malpractice only in cases where the plaintiff proves that a defendant's negligence, in probability, caused the death of the patient.

The appellant appears to argue for the broadest possible application of the loss-of-chance theory by permitting recovery for any interference with recovery. It seems to me we should revisit the loss-of-chance doctrine as a compensable theory of recovery and develop a final, workable doctrine that centers between the overly broad concept advanced by appellant and something less stringent than requiring a "greater than fifty percent likelihood that it produced the occurrence at issue." There are obvious difficulties in this area of tort law surrounding causation and damages. However, the difficulty in determining causation and calculating damages, and the corollary difficulties of proper jury instructions on these issues, should not serve as barriers to develop the living law to permit redress where liability is established and measurable damages are proven. Some other jurisdictions appear to allow recovery for loss of chance of survival if the plaintiff proves elimination of a substantial possibility of recovery or if plaintiff shows that a defendant's negligence increased the risk of harm or injury. Both of these concepts pose considerable causation problems as well as subjecting defendants (and juries) to considerable conjecture and speculation. Thus, we have in Ohio at least recognized the theory of loss of chance of recovery to the extent pronounced in the Cooper case, supra. I, therefore, concur in the judgment but reaffirm that loss of chance of recovery, within the limits set forth in Cooper andStinson, supra, is a recognized theory of malpractice recovery in Ohio.