Washington Supreme Court brings Clarity to the "Loss of Chance" Doctrine

By: Megan C. Clark

In the recent case of Dunnington v. Virginia Mason Medical Center, the Washington State Supreme Court provides much needed clarity to the “loss of chance” doctrine.  The “loss of chance” doctrine is a cause of action in the medical malpractice context for a “loss of chance for a better outcome,” established by Mohr v. Grantham.  Traditionally, health care providers were not liable for negligent care if a bad outcome is likely even with acceptable care.  The “loss of chance” doctrine changes and loosens this rule, providing for liability under certain circumstances.

 In Mohr, the Washington Supreme Court expanded the cause of action for “loss of chance of survival”, established initially by Herskovits v. Group Health Cooperative of Puget Sound, to cases where a plaintiff suffers a permanent disability. The Mohr Court noted a plaintiff must prove the traditional tort elements of duty, breach, and “that there was an injury in the form of a loss of chance caused by the breach of duty.”  What the Mohr Court failed to specifically identify is the applicable standard for causation; the decision merely states “to prove causation, a plaintiff would then rely on established tort causation doctrines permitted by law.”

In Dunnington, a patient’s leg was partially amputated after melanoma on his foot was misdiagnosed as a benign lesion. The patient’s podiatrist recommended two courses of treatment on several occasions to the patient – surgical excision of the lesion or cryotherapy, a more conservative approach.  The patient continually opted for the cryotherapy.  The patient returned to the podiatrist complaining of continued soreness; an MRI was completed and after discussing the results of the MRI with the podiatrist (who at that point recommended surgical excision of the lesion) the patient deferred making a decision.  The patient ultimately sought a second opinion from a second podiatrist who similarly diagnosed the lesion as benign, and recommended surgical excision; the patient again chose cryotherapy.  Ultimately, after the lesion did not respond to the cryotherapy attempts, the patient consulted with a dermatologist. The dermatologist biopsied the lesion and discovered the melanoma.  The patient underwent surgical excision and the melanoma was removed. However, the melanoma soon returned, and ultimately the patient’s leg was partially amputated.  The patient filed suit against his podiatrist as well as the hospital alleging the podiatrist was negligent in his misdiagnosis, “which deprived him of a 40 percent chance that the melanoma would not recur had a proper diagnosis and treatment occurred.”

In his briefing to the Court, the patient argued the “substantial factor” causation standard was more appropriate to use than the traditional “but for” causation standard. Traditionally, the “substantial factor” test is utilized in more narrow circumstances, “where either one of two causes would have produced identical harm ... In such cases, it is quite clear that each cause has played so important a part in producing the result that the responsibility should be imposed in it.”  The patient argued that the Supreme Court, in its decision in Mohr, left open the possibility that the substantial factor test may apply in loss of chance cases, despite its generally limited use.

The Dunnington decision allowed the Court to provide clarity on which causation standard is appropriate to utilize in “loss of chance” cases, and the Court definitively stated the “but for” causation standard is appropriate.  In its analysis the Court noted the broad implications of allowing the “substantial factor” standard in loss of chance cases, stating “a key distinction of loss of chance cases is that regardless of the negligence, the ultimate injury is likely to occur. Thus, if we held that the underlying medical condition, such as cancer, is also the cause of the lost chance, then we would essentially be holding that in every loss of chance case, the two causes, negligence and the underlying medical condition, produce identical harm. This would render a substantial factor test applicable in every loss of chance case involving medical malpractice – there will always be negligence and an underlying medical condition.”

This decision seeks to provide clarity to medical malpractice counsel – it is a definitive statement on the causation standard in loss of chance cases, a relatively new cause of action. A plaintiff must prove the lost chance would not have occurred but for the negligence, which may limit the overall implications of the doctrine and a patient’s potential recovery.

Megan C. Clark is an associate at Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C., in Spokane, Washington.  Mrs. Clark’s practice emphasizes civil litigation, municipal law, employment law, medical malpractice, and other complex litigation.

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 This article does not constitute legal advice nor does it create an attorney-client relationship. Contact an attorney at Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C. to find out more about the recent decision by the Washington State Supreme Court. 

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