Thomas A. Moore and Matthew Gaier
Thomas A. Moore and Matthew Gaier ()

The initial installment of this column examined the history of recovery for loss of chance in New York. Four years ago, we reviewed the manner in which recovery for loss of chance has been applied in cases involving delays in diagnosing cancer. We now review such recovery in cases that do not involve delays in diagnosing cancer.

Before turning to the substance of those cases, it is helpful to set forth the legal principles applicable to recovery for a loss of chance. The Fourth Department’s decision in Clune v. Moore, 142 A.D.3d 1330 (4th Dept. 2016), provides a concise and comprehensive articulation of those principles, stating:

Where, as here, the plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby “diminished [the patient's] chance of a better outcome,” in this case, survival. In that instance, the plaintiff must present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care. However, “[a] plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the [patient's] chance of a better outcome … , ‘as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the [patient's] chance of a better outcome’.” (Extensive citations have been omitted in light of space constraints.)

It should be noted that while the court addressed loss of chance only in the context of delays in diagnosis or treatment—and that certainly comprises the vast majority of such claims—it is not necessarily so limited. As will be demonstrated below, recovery for loss of chance can, at times, apply to affirmative acts of malpractice and not merely to omissions.

In addition to delays in diagnosing cancer, cases involving delays in diagnosing or treating cerebral vascular accidents (CVAs) such as strokes or bleeds commonly give rise to claims for loss of chance. Two of the cases discussed in the first installment of this column—Lang v. Newman, 12 N.Y.3d 868 (2009) (delay in diagnosing ischemic stroke) and Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177 (1st Dept. 1974) (hemorrhage from an aneurysm)—fall into this category. Like Kallenberg, Scott v. Brookdale Hosp. Ctr., 60 A.D.2d 647 (2d Dept. 1977), involved a delay in diagnosing an aneurysm that went on to rupture, resulting in the patient’s death. The plaintiff’s expert opined that with a proper evaluation, the aneurysm would have been discovered and surgery could have been performed which would have afforded him a 90 percent chance of recovery. The jury found for the plaintiff, but the trial court set the verdict aside. The appellate division reversed, rejecting the trial court’s finding that the expert’s testimony was based on speculation.

Similarly, the decedent in Wolfe v. Samaritan Hosp., 104 A.D.2d 143 (3d Dept. 1984), had been discharged from the hospital after what turned out to be a ruptured aneurysm was misdiagnosed as a viral infection. On appeal, the defendants argued that the 24 hour delay in admitting the decedent caused no injury. The appellate division disagreed, citing the plaintiff’s expert’s testimony that the discharge permitted the bleeding to continue, which aggravated his condition, and that the delay in treatment significantly reduced his chances for survival.

In Fellin v. Sahgal, 296 A.D.2d 526 (2d Dept. 2002), the 23-year-old plaintiff suffered an initial subarachnoid bleed from an aneurysm before he arrived and it completely ruptured three hours and 20 minutes later, resulting in a brain herniation that caused permanent damage. The appellate division found that the jury’s liability verdict based on a delay in treatment was against the weight of the evidence with respect to both departure and causation. A retrial again resulted in a verdict for the plaintiffs, but the trial court set it aside and dismissed the complaint. On the subsequent appeal, the appellate division focused only on causation, finding that the plaintiffs had clearly proven that the delay caused “a diminution of a substantial chance of avoiding the devastating result that the injured plaintiff suffered.” Fellin v. Sahgal, 35 A.D.3d 800 (2d Dept. 2006). Two judges dissented and would have affirmed the dismissal, while the majority remanded for the trial court to assess the weight of the evidence and other issues.

Cases involving delays in diagnosing or treating CVAs exemplify the array of outcomes that may exist with loss of chance. In some cases, timely treatment can avoid all injury; in others it may result in substantially lesser injuries. The evidence is controlling, and a jury may well find that earlier treatment would not have mattered at all.

Another area of malpractice that often implicates loss of chance involves cardiologic conditions. The plaintiff’s decedent in King v. St. Barnabas Hosp., 87 A.D.3d 238 (1st Dept. 2011), suffered a cardiac arrest while playing basketball at Riker’s Island. A physician’s assistant and a nurse responded within seven minutes, and used a defibrillator to determine whether there was electrical activity in the heart. Although they both noted only asystole, which is a flat line and no electrical activity, the PA testified at deposition that he saw a mixture of asystole and ventricular fibrillation. Defibrillation is not indicated and can be detrimental with asystole. The PA applied one shock with the defibrillator, determined the decedent was in asystole, discontinued using the device and commenced CPR. Thirteen minutes after the decedent collapsed, a physician arrived and administered epinephrine, but was unable to intubate. EMS arrived approximately 25 minutes after the decedent collapsed, successfully intubated him and administered atropine. However, he remained asystolic and was eventually pronounced dead.

The plaintiff alleged negligence in improperly defibrillating while the patient was in asystole and delays in instituting advanced life support. The Supreme Court dismissed the case on summary judgment, finding that the defense expert established that life-saving measures were timely instituted and the defibrillation had no detrimental effect, and that the plaintiff’s expert failed to offer any statistics or studies concerning the patient’s chance of survival. The First Department reversed, noting that causation need not be quantified or measured in percentages and finding that the evidence supported “the inference that by shocking the decedent when he was in an asystolic condition and by failing to timely administer the appropriate cardiac medications, defendants diminished decedent’s chances of recovery and may have further damaged decedent’s heart.” The court rejected the notion that the decedent was “destined to die,” finding that the “very fact that advanced life support protocols exist for patients in an asystolic state means adherence to the protocols afford a chance of reviving the patient, notwithstanding the grave nature of the condition.”

The decision in King provides a good example of loss of chance in the cardiologic context. It also illustrates that loss of chance cases are not limited to delays in treatment or malpractice of “omission” as opposed to “commission,” as the appellate division had indicated in Wild v. Catholic Health System, 85 A.D.3d 1715 (4th Dept. 2011), aff’d, 21 N.Y.3d 951 (2013), discussed in Part I of this column. The use of a defibrillator in the face of asystole was affirmative negligence that resulted in the decedent’s loss of chance for survival.

In another cardiology case, Goldberg v. Horowitz, 73 A.D.3d 691 (2d Dept. 2010), the decedent suffered a massive heart attack 12 hours after being evaluated for various complaints by his doctor, who performed an EKG that did not rule out a cardiac cause. He died several days later. The plaintiff’s expert opined that the EKG showed ischemia at rest, which is more dangerous than exercised induced ischemia, and that medical intervention was available which would have either prevented the heart attack altogether or reduced the amount of damage to the heart muscle. The defense experts found no departure from proper practice, but did not rule out the possibility that the decedent could have had a better outcome had he been sent to the emergency room. The trial court dismissed at the close of all evidence, finding insufficient proof of causation. The Second Department reversed, finding that the jury could infer from the evidence “that the decedent would have had a better outcome if the defendant had referred him to the hospital … .” Similarly, in Wong v. Tang, 2 A.D.3d 840 (2d Dept. 2003), the appellate division reversed an order dismissing plaintiff’s complaint at the close of evidence where the defendant diagnosed a myocardial infarction but failed to call an ambulance, noting that the expert testimony satisfied the plaintiff’s burden of showing some diminution of the chance of survival.

Several decisions involving loss of chance stem from cases alleging negligence in post-operative care. In Clune, quoted above, the Fourth Department reversed a dismissal based on evidence that negligence by the nursing staff “deprived decedent of the substantial possibility of surviving the bowel perforation and resultant peritonitis that led to the death,” and departures by the defendant doctor “substantially diminished decedent’s chance of surviving the bowel perforation and infection.” In Semel v. Guzman, 84 A.D.3d 1054 (2d Dept. 2011), the appellate division affirmed a jury verdict where the defendant had failed to communicate to the post-operative care givers that instruments had been placed in the esophagus thereby delaying the diagnosis of an esophageal perforation that decreased the decedent’s chances of a better outcome. In Majid v. Cheon-Lee, 147 A.D.3d 66 (3d Dept. 2016), the Third Department found that the trial court properly dismissed claims of negligence in failing to protect the left ureter during gynecologic surgery, but that it erred in dismissing claims stemming from a failure to recognize damage to the ureter intra-operatively and post-operatively. With regard to the latter, the court cited testimony that time was of the essence because the sooner the injury is picked up, the better the chances of saving the kidney.

Two appellate division decisions discuss loss of chance in the context of children who sustained neurologic injuries at birth. In Alicea v. Ligouri, 54 A.D.3d 784 (2d Dept. 2008), the court found sufficient evidence of causation stemming from the defendant’s failures to timely diagnose chorioamnionitis and gestational diabetes where there was expert testimony that it would have led to an earlier delivery and that delivery even 24 hours earlier would have prevented sepsis. The court noted that the “experts’ inability to specify the moment at which infection should have been diagnosed and the infant should have been delivered does not, in itself, defeat the plaintiff’s claim.” In Flaherty v. Fromberg, 46 A.D.3d 743 (2d Dept. 2007), the court found sufficient evidence of causation where there was a four minute delay in delivery by one defendant, in addition to a 17-minute delay by other defendants, during which time the baby remained anoxic and acidotic.

Some appellate decisions address the damages appropriate for the loss of chance occasioned by the malpractice. One such decision, Stewart v. New York City H & H, 207 A.D.2d 703 (1st Dept. 1994), involved a failure to diagnose an ectopic pregnancy that resulted in the destruction of the plaintiff’s right fallopian tube. Her expert testified that while he could not precisely quantify it, she would have had a less than 50 percent chance of conceiving a child by sexual intercourse had she not been injured and that the range of success was between 13 percent and 100 percent. The defense expert opined that her chances would have been 5 to 10 percent. The jury found that the negligence deprived the plaintiff of a substantial possibility of giving birth naturally, and awarded $500,000 for pain and suffering. The trial court set aside the finding of loss of natural child-bearing capacity as unsupported by sufficient evidence and reduced the award to $100,000. The First Department reinstated the verdict for loss of natural child-bearing and restored the award up to $300,000, finding that the plaintiff did not have to prove that the negligence deprived her of the ability to conceive and bear children naturally, but rather that it was the proximate cause of the loss of her right fallopian tube and that it “deprived her of a substantial possibility of that ability.” The court further commented that “if the jury found that she lost even a 5 to 10 percent chance of a having a successful pregnancy as a result of sexual intercourse and that this chance was ‘substantial,’ a verdict in her favor would be justified.” The pain and suffering award upheld by the appellate division clearly contemplated both physical pain from the ruptured fallopian tube and emotional pain from loss of the chance of natural child-bearing. It is not clear, however, whether the $200,000 restored by the court was premised purely on the emotional aspect.

More recently, in Marin v. New York City H & H, 145 A.D.3d 484 (1st Dept. 2016), the same court addressed the amount of damages appropriate for the lost chance to save the plaintiff’s leg that had been crushed by a car. The appellate division upheld the jury’s finding of liability based on the testimony of the plaintiff’s expert that with proper treatment, “the chance of saving the leg was 30-40% … .” Significantly, the court also found that the car driver, who had settled with the plaintiff prior to the malpractice action, was properly omitted from the verdict sheet because jury was properly charged that the malpractice defendants’ liability was limited to the exacerbation they caused to the original injury, and that the injuries were not indivisible because the testimony indicated what the condition of the leg would have been had it been saved. Against this background, the court found that the damages awards of $2,000,000 and $4,000,000, for past and future pain and suffering, as well as several items of special damages, were not excessive. Thus, those awards were deemed reasonable compensation for the loss of the 30 to 40 percent chance of saving the leg in the condition in which it would have been left. One judge dissented on the issue of damages, and would have reduced the pain and suffering awards to $1,500,000 and $3,000,000.

Loss of chance is a concept that is integral to medical malpractice litigation, in terms of both liability and damages. It also applies in a broad range of cases, and while it is most often discussed with reference to negligence of omission and delays in diagnosis or treatment, it is not so limited. The significance of the loss in any particular case is sui generis and will turn on the evidence and the jury’s assessment. And as long as there is evidence of some loss of chance of a better outcome or increased injury, the issue should always be resolved by a jury.