Herskovits v. Group Health Cooperative ( 1983 )

Dore, J.

This appeal raises the issue of whether an estate can maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy.

Both counsel advised that for the purpose of this appeal we are to assume that the respondent Group Health Cooperative of Puget Sound and its personnel negligently failed to diagnose Herskovits' cancer on his first visit to the hospital and proximately caused a 14 percent reduction in his chances of survival. It is undisputed that Herskovits had less than a 50 percent chance of survival at all times herein.

The main issue we will address in this opinion is whether a patient, with less than a 50 percent chance of survival, has a cause of action against the hospital and its employees if they: are negligent in diagnosing a lung cancer which reduces his chances of survival by 14 percent.

The personal representative of Leslie Herskovits' estate initiated this survivorship action against Group Health Cooperative of Puget Sound (Group Health), alleging failure to make an early diagnosis of her husband's lung cancer. Group Health moved for summary judgment for dismissal on the basis that Herskovits probably would have died from lung cancer even if the diagnosis had been made earlier, which the trial court granted.

I

The complaint alleged that Herskovits came to Group Health Hospital in 1974 with complaints of pain and coughing. In early 1974, chest X-rays revealed infiltrate in the left lung. Rales and coughing were present. In mid-1974, there were chest pains and coughing, which became persistent and chronic by fall of 1974. A December 5, 1974, entry in the medical records confirms the cough problem. Plaintiff contends that Herskovits was treated thereafter only with cough medicine. No further effort or inquiry was made by Group Health concerning his symptoms, other than an occasional chest X-ray. In the early spring of 1975, Mr. and Mrs. Herskovits went south in the hope that the warm weather would help. Upon his return to the Seattle area with no improvement in his health, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion. Within 3 weeks, Dr. Ostrow's evaluation and direction to Group Health led to the diagnosis of cancer. In July of 1975, Herskovits' lung was removed, but no radiation or chemotherapy treatments were instituted. Hersko-vits died 20 months later, on March 22, 1977, at the age of 60.

At hearing on the motion for summary judgment, plaintiff was unable to produce expert testimony that the delay in diagnosis "probably" or "more likely than not" caused her husband's death. The affidavit and deposition of plaintiff's expert witness, Dr. Jonathan Ostrow, construed in the most favorable light possible to plaintiff, indicated that had the diagnosis of lung cancer been made in December 1974, the patient's possibility of 5-year survival was 39 percent. At the time of initial diagnosis of cancer 6 months later, the possibility of a 5-year survival was reduced to 25 percent. Dr. Ostrow testified he felt a diagnosis perhaps could have been made as early as December 1974, or January 1975, about 6 months before the surgery to remove Mr. Hersko-vits' lung in June 1975.

Dr. Ostrow testified that if the tumor was a "stage 1" tumor in December 1974, Herskovits' chance of a 5-year survival would have been 39 percent. In June 1975, his chances of survival were 25 percent assuming the tumor had progressed to "stage 2". Thus, the delay in diagnosis may have reduced the chance of a 5-year survival by 14 percent.

Dr. William Spence, one of the physicians from Group Health Hospital who cared for the deceased Herskovits, testified that in his opinion, based upon a reasonable medical probability, earlier diagnosis of the lung cancer that afflicted Herskovits would not have prevented his death, nor would it have lengthened his life. He testified that nothing the doctors at Group Health could have done would have prevented Herskovits' death, as death within several years is a virtual certainty with this type of lung cancer regardless of how early the diagnosis is made.

Plaintiff contends that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury. Defendant Group Health argues conversely that Washington law does not permit such testimony on the issue of medical causation and requires that medical testimony must be at least sufficiently definite to establish that the act complained of "probably" or "more likely than not" caused the subsequent disability. It is Group Health's contention that plaintiff must prove that Herskovits "probably" would have survived had the defendant not been allegedly negligent; that is, the plaintiff must prove there was at least a 51 percent chance of survival.

Pursuant to CR 56(c), summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. All reasonable inferences from the evidence must be resolved against the moving party, and in favor of the non-moving party. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979).

II

This court has held that a person who negligently renders aid and consequently increases the risk of harm to those he is trying to assist is liable for any physical damages he causes. Brown v. MacPherson's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). In Brown, the court cited Restatement (Second) of Torts § 323 (1965), which reads:

One who undertakes ... to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable to his if

(a) his failure to exercise such care increases the risk of such harm,. . .

This court heretofore has not faced the issue of whether, under section 323(a), proof that the defendant's conduct increased the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury. Some courts in other jurisdictions have allowed the proximate cause issue to go to the jury on this type of proof. See McBride v. United States, 462 F.2d 72 (9th Cir. 1972); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Kallenberg v. Beth Israel Hasp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (1974); Jeanes v. Milner, 428 F.2d 598 (8th Cir. 1970); Hicks v. United States, 368 F.2d 626 (4th Cir. 1966). These courts emphasized the fact that defendants' conduct deprived the decedents of a "significant" chance to survive or recover, rather than requiring proof that with absolute certainty the defendants' conduct caused the physical injury. The underlying reason is that it is not for the wrongdoer, who put the possibility of recovery beyond realization, to say afterward that the result was inevitable. See also Wolfstone & Wolfstone, Recovery of Damages for the Loss of a Chance, Pers. Inj. Ann. 744 (1978).

Other jurisdictions have rejected this approach, generally holding that unless the plaintiff is able to show that it was more likely than not that the harm was caused by the defendant's negligence, proof of a decreased chance of survival is not enough to take the proximate cause question to the jury. Cooper v. Sisters of Charity, Inc., 27 Ohio St. 2d 242, 272 N.E.2d 97 (1971); Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct. App. 1980); Hanselmann v. McCar-dle, 275 S.C. 46, 267 S.E.2d 531 (1980); Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn. 1980). These courts have concluded that the defendant should not be liable where the decedent more than likely would have died anyway.

The ultimate question raised here is whether the relationship between the increased risk of harm and Herskovits' death is sufficient to hold Group Health responsible. Is a 36 percent (from 39 percent to 25 percent) reduction in the decedent's chance for survival sufficient evidence of causation to allow the jury to consider the possibility that the physician's failure to timely diagnose the illness was the proximate cause of his death? We answer in the affirmative. To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.

Ill

We are persuaded by the reasoning of the Pennsylvania Supreme Court in Hamil v. Bashline, supra. While Hamil involved an original survival chance of greater than 50 percent, we find the rationale used by the Hamil court to apply equally to cases such as the present one, where the original survival chance is less than 50 percent. The plaintiff's decedent was suffering from severe chest pains. His wife transported him to the hospital where he was negligently treated in the emergency unit. The wife, because of the lack of help, took her husband to a private physician's office, where he died. In an action brought under the wrongful death and survivorship statutes, the main medical witness testified that if the hospital had employed proper treatment, the decedent would have had a substantial chance of surviving the attack. The medical expert expressed his opinion in terms of a 75 percent chance of survival. It was also the doctor's opinion that the substantial loss of a chance of recovery was the result of the defendant hospital's failure to provide prompt treatment. The defendant's expert witness testified that the patient would have died regardless of any treatment provided by the defendant hospital.

The Hamil court reiterated the oft-repeated principle of tort law that the mere occurrence of an injury does not prove negligence, but the defendant's conduct must be a proximate cause of the plaintiff's injury. The court also referred to the traditional "but for" test, with the qualification that multiple causes may culminate in injury. Hamil, at 266.

The court then cited Restatement (Second) of Torts § 323 (1965) as authority to relax the degree of certitude normally required of plaintiff's evidence in order to make a case for the jury. The court held that once a plaintiff has introduced evidence that a defendant's negligent act or omission increased the risk of harm to a person in plaintiff's position, and that the harm was in fact sustained, "it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm". Hamil, at 269. See also C. McCormick, Damages § 31 (1935); Wolfstone & Wolfstone, supra at 744.

The Hamil court distinguished the facts of that case from the general tort case in which a plaintiff alleges that a defendant's act or omission set in motion a force which resulted in harm. In the typical tort case, the "but for" test, requiring proof that damages or death probably would not have occurred "but for" the negligent conduct of the defendant, is appropriate. In Hamil and the instant case, however, the defendant's act or omission failed in a duty to protect against harm from another source. Thus, as the Hamil court noted, the fact finder is put in the position of having to consider not only what did occur, but also what might have occurred. Hamil states at page 271:

Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof.

(Footnote omitted.) The Hamil court held that once a plaintiff has demonstrated that the defendant's acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.

In Hicks v. United States, supra, the Court of Appeals set forth the rationale for deviation from the normal requirements of proof in a case such as the one presently before us. The following quotation from Hicks, at 632, is frequently cited in cases adopting loss of a chance because it succinctly defines the doctrine:

Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.

Under the Hamil decision, once a plaintiff has demonstrated that defendant's acts or omissions in a situation to which section 323(a) applies have increased the risk of harm to another, such evidence furnishes a basis for the fact finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm. The necessary proximate cause will be established if the jury finds such cause. It is not necessary for a plaintiff to introduce evidence to establish that the negligence resulted in the injury or death, but simply that the negligence increased the risk of injury or death. The step from the increased risk to causation is one for the jury to make. Hamil, at 272.

In Jeanes v. Milner, supra, the plaintiff mother brought a malpractice action for the death of her child from throat cancer, claiming delayed diagnosis of 1 month caused a shortened life span and pain and suffering. The United States Court of Appeals for the Eighth Circuit, reversing a dismissal for insufficient evidence on the element of proximate cause, held at pages 604-05:

We cannot agree with the District Court's holding that "there is no evidence from which the jury could find that the delay of approximately one month in the transmission of [the] slides could have been the proximate cause of [Tommy's] failure to recover from his cancer, or to increase his pain and suffering or to shorten his life." Nor can we agree that the jury could "only find a verdict for the plaintiff based on speculation and conjecture."

The Supreme Court of the United States has spoken to a contention similar to that argued here by the doctors and the Infirmary. In Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946), the Court stated:

"It is no answer to say that the jury's verdict speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems them to be the most reasonable inference."

The recent case of James v. United States, 483 F. Supp. 581 (N.D. Cal. 1980) concerned the failure to diagnose and promptly treat a lung tumor. The court concluded that the plaintiff sustained its burden of proof even without statistical evidence, stating at page 587:

As a proximate result of defendant's negligence, James was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. No matter how small that chance may have been — and its magnitude cannot be ascertained — no one can say that the chance of prolonging one's life or decreasing suffering is valueless.

(Italics ours.)

Where percentage probabilities and decreased probabilities are submitted into evidence, there is simply no danger of speculation on the part of the jury. More speculation is involved in requiring the medical expert to testify as to what would have happened had the defendant not been negligent. McCormick, supra.

Chester v. United States, 403 F. Supp. 458, 460 (W.D. Pa. 1975) was a medical malpractice suit for negligent failure to diagnose and treat cancer of the esophagus. The court found that in November 1972, the decedent was exhibiting symptoms and complaints that were consistent with cancer. No tests were performed to determine what was causing the illness, and the court determined this was below the accepted medical standard of care. Further, the judge decided that the cancer was indeed present in November 1972, and could have been treated or resected before metastasis. The judge reasoned that, if there was a possibility that the decedent had carcinoma of the esophagus, the hospital doctors were negligent in treating him for hypertension only.

The Chester court then awarded damages of $45,988.10, including $36,741.10 for loss of earning power, $7,500 for the loss of guidance, etc., for his minor children, and $1,747 for funeral expenses. This damage award is consistent with our reasoning in Wooldridge v. Woolett, 96 Wn.2d 659, 638 P.2d 566 (1981) where we held that a decedent's shortened life expectancy is not recoverable as a separate item of damages, but will be considered as it affects the loss of value of his future earning capacity.

Conclusion

Both counsel have agreed for the purpose of arguing this summary judgment that the defendants were negligent in failing to make a diagnosis of cancer on Herskovits' initial visit in December 1974, and that such negligence was the proximate cause of reducing his chances of survival by 14 percent. It is undisputed that Herskovits had less than a 50 percent chance of survival at that time. Based on this agreement and Dr. Ostrow's deposition and affidavit, a prima facie case is shown. We reject Group Health's argument that plaintiffs must show that Herskovits "probably" would have had a 51 percent chance of survival if the hospital had not been negligent. We hold that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury.

Causing reduction of the opportunity to recover (loss of chance) by one's negligence, however, does not necessitate a total recovery against the negligent party for all damages caused by the victim's death. Damages should be awarded to the injured party or his family based only on damages caused directly by premature death, such as lost earnings and additional medical expenses, etc.

We reverse the trial court and reinstate the cause of action.

Rosellini, J., concurs.