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A patient should have been allowed to sue for the loss of a greater chance to save his right leg, even though he admitted that he would have opted for amputation anyway, the South Dakota Supreme Court held, 3-2, on Feb. 6. Jorgenson v. Vener, No. 2002 SD 20. The patient, David Jorgenson, claimed his doctor’s negligent failure to diagnose a chronic infection in his shin bone or to refer him to an infectious disease specialist reduced from 75 percent to only 60 percent the chance that his leg could have been saved. It was during an earlier stage of this medical malpractice case that the high court first recognized a cause of action for loss of chance. But on remand, the trial court granted summary judgment to the defendant, Dr. Michael Vener, because Jorgenson testified at a deposition that he would have chosen amputation rather than undergo an uncertain two-year course of treatment. “I don’t have two-and-a-half years to be there and I don’t want bone grafts, operations, and still probably lose my leg. Plus, it would have been a fused ankle with a rocker bottom shoe, so I would still have been crippled,” Jorgenson had said at his deposition. But, reversing and remanding for a jury trial, the high court said the “issue in this case is not whether Jorgenson’s deposition testimony negates the possibility of a different outcome precluding his recovery on a loss of chance claim. Rather, the issue is whether Jorgenson should be given the opportunity to prove the amount of damages he suffered as a result of the doctor’s negligence.” Writing for the majority, Justice Richard W. Sabers said Jorgenson should not be deprived of the opportunity “simply because of an after-the-fact statement.” To hold otherwise would defeat the purpose of the loss of chance doctrine, which “involves the idea that a doctor, by doing something wrong, has decreased the patient’s chance of recovery or survival,” Sabers wrote. Dissenting, Chief Justice David Gilbertson said that if Jorgenson would not have done anything differently given the chance, then there was a fatal gap in the proof as to proximate cause. The majority of courts considering loss-of-chance claims would require Jorgenson to prove that Vener’s negligence was a “substantial factor” in bringing about the ultimate injury, Gilbertson said, but Jorgenson had already shown that the lost chance was not a substantial factor in his undergoing an amputation. James R. Welsh of Omaha, Neb., who was co-counsel for Jorgenson, said it was premature to discuss trial issues or a prayer for damages. He emphasized that this was a “progressive” opinion, saying, “This is a state of 750,000 people, one-third Indians. People think we’re still using stagecoaches out here, that this is a very conservative venue. But the supreme court here issued a liberal opinion that sounded like it came from New York.” However, Vener’s counsel, Reed Rasmussen of Siegel, Barnett & Schutz in Aberdeen, S.D., said the court was traditionally “pretty conservative, even though it went a bit far in this case, considering the facts.”

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