A hypothetical: The patient was diagnosed with cancer at Stage IV, when it had become untreatable, and unfortunately passed away. Her estate sued on the ground that her physician should have diagnosed the cancer when it was Stage III. Authoritative statistics indicate that if the cancer had been diagnosed at Stage III, the patient would have had a 40 percent chance of survival. The patient’s estate sues for wrongful death damages. The defendant argues that the estate cannot show that her malpractice was the cause of the demise. What results?

This is naturally enough termed the “loss of a chance” situation. The highest courts of most states have offered varied answers to this question. The Court of Appeals affirmed without opinion in Kallenberg v. Beth Israel Hospital, a case of this type, almost 40 years ago but has not addressed this subject since.1

Oddly, none of the Appellate Division cases that have addressed this situation analyzed the issues in any detail. Both plaintiffs’ and defendants’ attorneys in New York have been in need of guidance in this area.

That guidance probably will come this fall in Wild v. Catholic Health System,2 which is before the court. However, the plaintiff-respondent on that appeal will argue that the loss of a chance question is not preserved or need not be reached.

Approaches

It is generally agreed that there are three or four answers to our hypothetical.3 The first answer is the “traditional” approach, based on the idea that a defendant may not be forced to pay unless it is “more likely than not” that the defendant’s negligence was the cause of the injury. Under this approach, which has been termed the “all or nothing” approach, if the percentage chance is 50 or less, the plaintiff recovers nothing; if it is 51 or more, the plaintiff recovers full damages for wrongful death. As of 2008, some 10 states followed the traditional approach.4

The second approach, most aptly termed the “proportional” approach, is also termed the “loss of a chance doctrine.”5 Under this approach, the jury is asked to state the full amount of wrongful death damages and the percentage chance of survival that was lost. The court then multiplies those two figures to determine the amount awarded. In our hypothetical, the estate would recover 40 percent of wrongful death damages. As of 2008, the highest court of 20 states and the District of Columbia had adopted the proportional approach.6

A third approach is termed the “relaxed causation” approach. Under this approach the more likely than not requirement for causation is replaced by the requirement that the plaintiff prove that the malpractice was a substantial factor in the death. Under this approach, the plaintiff obtains a full recovery, not a discounted recovery as under the proportional approach.7 It is of course generally said that New York is a “substantial factor” state.8

Under the fourth approach, best termed the “substantial possibility” approach, the causation element is satisfied if the jury finds, by a preponderance of the evidence, that the defendant’s malpractice deprived the plaintiff of a substantial possibility of a better result. This approach begs the question whether the deprivation must be proved by a preponderance of the evidence or whether it is sufficient that the malpractice was a substantial factor in the loss of the substantial possibility.9 In New York it is clearly the law, although infrequently expressed, that a defendant is liable, in the absence of joint liability, for only the damages caused by that defendant.10

New York Cases

Ironically, the first New York case that may be considered a loss of a chance case is the only one that went to the Court of Appeals, although that court affirmed without opinion. Kallenberg was an action for wrongful death and conscious pain and suffering arising from medical malpractice. The decedent was admitted to the hospital after a hemorrhage from an aneurysm. An order was written for the medication Naturetin to reduce her blood pressure so that she could undergo surgery, but for unknown reasons the medication was never administered. The decedent passed away before her blood pressure was lowered sufficiently to permit an operation. The jury’s sole finding of malpractice was the failure to administer the Naturetin as ordered.

The plaintiff’s expert testified that the failure to give Naturetin was a contributing factor to the death. The expert also testified that surgery could have been performed if the proper medication had been administered and that with surgery the plaintiff had “‘a 20, say 30, maybe 40 [percent chance] of survival.’” The same expert testified that with proper medication but without surgery, the decedent had a 2 percent chance of survival. After noting that the questions of credibility and proximate cause are jury questions, the Appellate Division stated, “On the record before us, it is clear that the jury could find, as it did, that had [the plaintiff] been properly treated with the indicated medication of choice, her blood pressure could have been kept under control, and she might have improved sufficiently, even after Aug. 22, to undergo surgery and make a recovery” (emphasis added). The Court of Appeals affirmed without opinion.

This decision is remarkable for the court’s failure to recognize that it faced a question of loss of a chance. By the date of the Appellate Division’s decision, the question of loss of a chance had been the subject of many judicial decisions across the country.11 The court’s ruling also shows no recognition of the fact that what the decedent lost because of the malpractice was a 20 to 40 chance of survival, but yet her estate apparently was awarded wrongful death damages as if she had been perfectly healthy and struck by a car.

The next New York case is Kimball v. Scors from the Appellate Division, Third Department, in 1977.12 The court adopted the “substantial possibility” view but with no multiplication of the total damages by the possibility lost.

Next came Mortensen v. Memorial Hospital, an Appellate Division, First Department, case from 1985.13 The court seemingly rejected the loss of a chance doctrine and reaffirmed the principle that a defendant can be liable only when it is more likely than not that the defendant’s negligence caused the injury. However, the court went on to conclude that it believed that “in determining proximate cause [the phrase 'substantial possibility'] accurately conveys to the layman the requirement that to be actionable the defendant’s negligence must, more probably than not, bring about the plaintiff’s injury.” But if the 20 to 40 percent in Kallenberg is a substantial possibility, then a substantial possibility does not always establish that it was more probable than not that the malpractice caused the injury.

In Cannizzo v. Wijeyasekaran,14 a 1999 decision, the Appellate Division, Fourth Department, adopted the “substantial possibility” approach but said nothing about a proportional reduction of the damages for a complete loss.

In Jump v. Facelle,15 a 2000 decision from the Appellate Division, Second Department, the court stated, “In cases of this nature, the plaintiff’s expert need not quantify the exact extent to which a particular act or omission decreased a patient’s chances of survival or cure, as long as the jury can infer that it was probable that some diminution in the chance of survival had occurred” (emphasis added).

Thus, without fanfare, the court rejected the “substantial possibility” standard and rendered the Second Department an “any possibility” jurisdiction. Moreover, the court stated that the plaintiff must show that it is “probable,” meaning more likely than not, that there was a diminution, and not merely that the negligence was a substantial factor in the diminution.

Further confusing the matter is King v. St. Barnabas Hospital,16 from 2011, in which the First Department, which had embraced the substantial possibility standard in Mortensen, observed, in reversing the award of summary judgment to the defendants, that there was evidence that the defendants’ acts “diminished [the] decedent’s chances of recovery,” thus apparently joining the Second Department in the “any possibility” standard.

‘Wild’ Case

In Wild, the plaintiff came to the emergency room and her esophagus was perforated during an intubation attempt. There was a delay in diagnosing the perforation. The principal permanent injury was the necessity of a permanent feeding tube. The court stated that what it referred to as the “loss of a chance” charge was appropriate for the delay in diagnosing the perforation, citing 1 N.Y. P.J.I.3d 2:150, which is in fact a charge that loss of “substantial possibility” can constitute a substantial factor contributing to the injuries or death. The court held, however, that that was not an appropriate charge for the perforation itself, because as to that claim “the issue was whether the negligent act was a substantial factor in bringing about the injury, i.e., the perforated esophagus,” although the court then found that the error was harmless and that the challenge to the charge was unpreserved. Id. at 1717-18.

The defendant’s principal argument in the Court of Appeals is that the doctrine of loss of a chance, pursuant to which, in our opening example, the estate would recover 40 percent of wrongful death damages, should not be adopted in New York because it permits recovery when it is not “more likely than not” that the defendant’s negligence caused the injury. The defendant also argues that because it would be a radical departure from traditional causation rules, and would impact primarily medical malpractice cases, it should be for the Legislature to adopt it. In addition, the defendant argues that the charge was erroneous because the court gave no instruction that the plaintiff should recover only for those damages that were attributable to the defendants’ negligence.

As noted, the Appellate Division in Wild found the error in the charge to be harmless and also found that the defendant’s claim of error was not preserved. But practitioners and judges are desperately in need of guidance in this area. Here is hoping that the Court of Appeals reaches the loss of a chance issues and provides that guidance.

Timothy J. O’Shaughnessy is a member of Mauro Lilling Naparty.

Endnotes:

1. Kallenberg v. Beth Israel Hospital, 45 A.D.2d 177 (1st Dept. 1974), aff’d without op., 37 N.Y.2d 719 (1975).

2. Wild v. Catholic Health System, 85 A.D.3d 1715 (4th Dept. 2011), leave to appeal granted, 18 N.Y.3d 803 (2012).

3. See McKellips v. Saint Francis Hospital, 741 P.2d 467, 471-74 (1987) (Summers, J., concurring); J. King, “Reduction of Likelihood” Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Memphis Law. Rev. 491, 505-09 (1998).

4. See Matsuyama v. Birnbaum, 452 Mass. 1, 10 & n.23 (2008).

5. J. King, Causation, Valuation, and Chance in Personal Injury Torts involving Preexisting Conditions and Future Consequences, 90 Yale L. J. 1353 (1981).

6. See Matsuyama, 452 Mass. at 10 & n.23.

7. See Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397, 401-02 (Tex. 1993).

8. Doomes v. Best Transit, 17 N.Y.3d 594, 600 (2011).

9. See King, “Reduction of Likelihood,” 28 U. Mem. L. Rev. at 507-08.

10. Stewart v. Olean Medical Group, 17 A.D.3d 1094, 1096 (4th Dept. 2005); Monahan v. Weichert, 93 A.D.2d 984, 985 (4th Dept. 1983).

11. E.g., Feist v. Sears, Roebuck & Co., 267 Or. 402 (1973); Hicks v. United States, 368 F.2d 626 (4th Cir. 1966); Harvey v. Silber, 300 Mich. 510 (1942); Kuhn v. Banker, 133 Ohio St. 304 (1938); see also Chaplin v. Hicks, 2 K.B. 786 (1911).

12. 59 A.D.2d 984 (3d Dept. 1977), leave to appeal denied, 43 N.Y.2d 648 (1978).

13. 105 A.D.2d 151 (1st Dept. 1985).

14. 259 A.D.2d 960 (4th Dept. 1999).

15. 275 A.D.2d 345 (2d Dept.), motion for leave to appeal dismissed, 95 N.Y.2d 931 (2000), leave to appeal denied, 98 N.Y.2d 612 (2002).

16. 87 A.D.3d 238, 245 (1st Dept. 2011).