Lost Chance of Survival
We take many calls concerning medical negligence cases, and we frequently get inquiries from people who claim their doctor delayed in diagnosing their cancer. These cases can be difficult to evaluate for the following reasons:
1) Proximate Cause – did the delay cause any damage?
2) Burden of Proof – is there actual proof the diagnosis was missed, such as a radiology study that required follow up?
3) Differing types of cancer have different cure rates, growth rates, etc.
Legally, the biggest issue in a delayed diagnosis cancer case is lost chance of survival. Currently, in a death case, a Plaintiff has the burden of showing that the doctor’s malpractice reduced Plaintiff’s chance of a survival to less than 50%. For the best explanation of this issue, review Holt v. Taylor, 344 Ark. 691, 43 S.W.3d 128, 2001 Ark. LEXIS 286 (2001). In Holt, on April 30, 1996, Sheryl Holt was being prepped for gallbladder surgery and underwent a routine chest x-ray. The x-ray noted “a right apical mass, infiltrate and/or plural thickening.” This was abnormal and the radiologist recommended follow up. No action was taken.
In October of 1996, Sheryl Holt was diagnosed with lung cancer and died on February 5, 1998. Plaintiff’s expert in the case was deposed and stated as follows:
ATTORNEY: Okay. So if the tumor had been diagnosed and treated in April of 1996, can you say within a reasonable degree of medical certainty or probability that it is more likely than not she would have survived up to five years?
STEIN: No. Because if she only had a 30 percent chance, it’s more likely than not she would have survived five years. It’s more likely than not that she would have had a 30 percent probability of being alive at five years.
ATTORNEY: And can you say that she would have been within the 30 percent that made it to five years?
STEIN: I don’t know which side she would have fallen on. It doesn’t matter. For an individual patient, it’s either all or none. They are alive or not. My opinion she (sic) would have had a 30 percent chance of being in that group that survived five years.
ATTORNEY: In all fairness, [***6] I am trying to look at the best possible case scenario in the range of your opinion.
STEIN: My opinion is she was more than likely a IIIA. She could have been a II. That is less likely. Had she in any way for (sic) six months earlier, I don’t think the chance of survival went from 0 to 50 percent. I think the chance of survival if found in April, would have been less than 50 percent at five years. What you are getting there is what is her chance of cure. I don’t think that it was 50 percent. I don’t think it was. It may have been.
The trial court granted summary judgment in favor of the Defendant doctor stating “there is no evidence of any acts of negligence by the Defendant which could be the proximate cause of the decedent’s death.” The Supreme Court affirmed, stating:
“In short, Mr. Holt asks this court to recognize a novel theory of tort recovery — the lost chance of survival — but provides us with no citation of authority or convincing argument for [*697] doing so. This court has said time and again that we will not do research for an appellant and will affirm a trial court’s decision when the appellant’s argument is not supported by legal authority or convincing [***11] argument. See, e.g., Judicial Discipline & Disab. Comm’n v. Thompson, 341 Ark. 253, 16 S.W.3d 212 (2000); Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999); Farm Bureau Policy Holders v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 335 Ark. 285, 984 S.W.2d 6 (1998). Accordingly, we affirm the summary judgment.”
“We recognize that lost chance of survival is a complex legal theory that has taken various shapes and forms in other states. We are not closing the door to the future adoption of one of the versions of lost chance of survival. Indeed, in Ford v. St. Paul Fire & Marine Ins. Co., supra, we came close to adopting the traditional rule regarding lost chance of survival, without couching our holding in those terms. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993) (plaintiffs should be required to know that it is more probable than not, that is, greater than 50%, that but for defendant’s negligence, plaintiff would have survived.) Suffice it to say that we will revisit the issue when it is properly presented with appropriate citation to authority and convincing argument.”
It is important to keep in mind that in non-death cases claims for delayed diagnosis of cancer have been allowed to survive summary judgment. See Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455 (1987). The plaintiff in Blackmon was allowed to go to the jury on claims for pain and suffering, lost wages, lost earning capacity, and mental anguish. Significantly delayed diagnosis of certain cancers can lead to longer treatment times, different types of treatment, and considerably increased pain and suffering.
The Supreme Court’s closing paragraph to the opinion states:
“It is clear to us that the jury found, in accordance with these standard instructions, that Mr. Langley suffered more and lost more as a result of Dr. Blackmon’s conduct than he would have suffered or lost had he known to obtain treatment for his cancer when it was discovered rather than some seven or eight months later.”
Lengthier discussions of the lost chance doctrine can be found in Finn v. Phillips, 2002 Ark. App. LEXIS (originally not designated for publication) and the law review article “The Lost Chance Doctrine in Arkansas and the Door Left Open: Revisiting Holt ex rel. Holt v. Wagner,” Warzecha, 63 Ark. L. Rev. 785.
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