Herskovits v. Group Health Cooperative

Supreme Court of Washington · Torts

Tortsmedical malpracticecausationloss of chancewrongful deathsurvivorshipmedical negligencedelayed diagnosis

Facts

For purposes of the appeal, the parties assumed that Group Health negligently failed to diagnose Herskovits' lung cancer on his first visit in December 1974. Plaintiff's expert, Dr. Ostrow, testified that if the cancer had been diagnosed then, Herskovits' 5-year survival chance would have been 39 percent, but by the time of diagnosis about 6 months later it had fallen to 25 percent. Thus, the alleged delay reduced his chance of survival by 14 percent, and it was undisputed that he had less than a 50 percent chance of survival at all relevant times. The trial court nonetheless dismissed because plaintiff could not produce expert testimony that earlier diagnosis probably would have prevented death.

Issue

Whether a patient who had less than a 50 percent chance of survival may maintain a professional negligence action when negligent delay in diagnosis reduced that chance of survival by 14 percent. More specifically, the question is whether evidence of a reduced statistical chance of survival is sufficient to let the jury decide proximate cause.

Rule

When a defendant negligently undertakes services necessary to protect another and that negligence increases the risk of harm under Restatement (Second) of Torts § 323(a), evidence that the negligence reduced the patient's chance of survival is sufficient to take proximate cause to the jury. A plaintiff need not prove that timely diagnosis and treatment probably would have produced survival exceeding 50 percent; it is enough to show that the negligence increased the risk of death by reducing a significant chance of survival.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Oregon, Dr. Nina Patel negligently failed to order follow-up testing for Omar Lewis's pancreatic mass during a clinic visit. Expert testimony shows that the delay reduced Omar's 5-year survival chance from 32% to 18%, and he later died; no expert will say he probably would have survived with timely care.

On the defendant's summary judgment motion, what is the strongest argument for denying the motion?

Explanation. The majority held that where negligent medical care increased the risk of death by reducing the patient's chance of survival, proximate cause may go to the jury even if the patient never had a better-than-even chance of survival. The plaintiff need not show the patient probably would have survived; showing a reduced survival chance is enough to defeat summary judgment and permit the jury to decide whether the increased risk was a substantial factor.