Meetings can be scheduled by appointment at various locations for the convenience of our clients. If you can't come to us, we'll come to you.
Baltimore, MD
410.576.4287410.576.4287
Tysons Corner, VA
888.540.2599888.540.2599
By Appointment Only
Bethesda, MD
301.470.7201301.470.7201
Washington, DC
202.659.0555202.659.0555

The Lost Chance Doctrine And It’s Effect On Medical Malpractice Cases In Maryland.

In Mohr v. Grantham, the Supreme Court of Washington recently extended the “lost chance of a better outcome” doctrine to medical malpractice cases in which the ultimate harm to the patient is disability rather than death. The State of Washington had previously recognized the doctrine in death cases.

The doctrine has now been recognized in approximately half of the jurisdictions in the United States, but not in Maryland. Basically, the lost chance doctrine alters the traditional rule that health care providers are not liable for providing negligent care if a bad outcome is probable even with good care. For example, in some situations, death by reason of a pre-existing condition might be a probable outcome whether or not a particular treatment is provided appropriately.

A. Mohr v. Grantham

In Mohr v. Grantham, a patient, Linda Mohr, suffered a head injury in a motor vehicle accident. She received treatment at the emergency room of a local hospital, and was then released. It was later determined that at some point she suffered a trauma induced stroke that ultimately rendered her permanently disabled.

Ms. Mohr alleged that her physicians had breached the recognized standard of care for treating head trauma, and that their actions had substantially diminished her chance of a better medical outcome. Specifically, one of her medical experts opined that her stroke should have been diagnosed sooner, and that had she started anti-coagulants, anti-platelet agents, and general brain protection care earlier, she would have had a 50 to 60 percent chance of a better outcome – either no disability or, at least, significantly less disability.

The Washington Supreme Court concluded that, to the extent Ms. Mohr was able to prove that her physicians’ negligence reduced her chance of avoiding or minimizing her permanent disability, she was entitled to compensation for that lost chance of a better result. The State of Washington had previously adopted the lost chance doctrine in a 1983 case involving a patient who died of lung cancer after the alleged failure of his health care providers to diagnose and treat his cancer in a timely manner.

The injured party’s medical experts in the 1983 case had testified that the delay in diagnosing his condition had reduced his five year survival rate from 39 percent to 25 percent.  The court held that the harm caused by the physicians’ negligence, a decrease in the injured party’s survival rate by 14 percentage points, was a compensable injury. It reasoned that “[t]o decide otherwise would extend a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.”

The Mohr decision extends the lost chance doctrine to cases where the ultimate harm is some serious injury short of death. In doing so, the court concluded that there was no meaningful basis to distinguish permanent disability from death for purposes of raising a loss of chance claim.

However, the court also concluded that Ms. Mohr’s damages would be limited to the “percentage” of the ultimate harm that she suffered that was attributable to her physicians’ negligence. For example, if an injured party suffers $100,000 of damages, and there is a 30% chance that the patient would have avoided those damages with appropriate care, then the party who does not provide that care would be liable for $30,000.

B.  Lost Chance Doctrine

The lost chance doctrine represents a departure from traditional legal principles, which ordinarily require an injured party to prove a probability of harm; that is, the negligence of a wrongdoer more likely than not brought about the injured person’s injuries. It is not enough for an injured party to show that he was deprived of a significant chance of avoiding harm.

Therefore, in the context of a medical malpractice case, if a patient with a pre-existing medical condition has a greater than 50 percent chance of dying or suffering harm short of death even with proper medical treatment, then his physician may not be found liable under the traditional standard for negligence. In such cases, the pre-existing disease or injury is considered the more likely cause of injury or death, not the accompanying medical negligence.

Over the course of the last half century, however, a number of courts, including the Washington Supreme Court, have concluded that the traditional rule is too restrictive, and have adopted the lost chance doctrine. Under that view, a showing that an injured party was deprived of a significant chance of avoiding harm constitutes sufficient evidence of causation. Although such a patient likely would have suffered harm even in the absence of medical negligence, courts adopting the lost chance doctrine consider the lost chance of a better outcome, not the ultimate harm itself, to be the compensable injury.

C.  Maryland and Other Jurisdictions

The lost chance doctrine has been adopted in one form or another by many courts, but it has by no means achieved universal acceptance. The Mohr court noted that of those jurisdictions that have considered the issue, 21 have adopted some form of the lost chance doctrine, while 10 jurisdictions have declined to do so. As recently as this January, a federal court applying Maine law concluded that Maine did not recognize the lost chance doctrine in medical malpractice cases.

Maryland is one of the states that has declined to adopt the lost chance doctrine. In a wrongful death decision, Maryland has held that, if a patient’s chance of survival is less than 50 percent at the time that the malpractice occurs, a physician may not be held liable for his acts or omissions which reduce or eliminate the patient’s chance of survival. That court concluded that the probable cause of death is not the malpractice but the pre-existing medical condition.

D.  The Compensation Conundrum

The two prevailing approaches to causation in medical malpractice cases (namely, (i) whether the harm is “more likely than not” to occur, and (ii) the lost chance doctrine) will each result in overcompensation or undercompensation in some situations. For example, a cancer patient, who has a 40 percent chance of survival with proper treatment, may eventually succumb to cancer after failing to receive that treatment. We can predict that out of 100 similarly situated patients, 40 would have been saved by proper intervention and care, but the other 60 would have died in any event.

In an idealized system, the 40 patients who died as a result of their physicians’ negligence would be fully compensated for their deaths, and the 60 who would have died anyway would be denied compensation. The conundrum is that medical science cannot tell us whether any individual patient who dies was one of the 40 who did so as a consequence of medical malpractice, or one of the 60 whose medical outcome was not affected by the failure to receive proper care.

Under Maryland law, none of the 100 cancer patients will be compensated for their deaths. That outcome is arguably proper for the 60 patients who would have died anyway, but it deprives compensation to the 40 who would have survived with proper care.

Under the lost chance doctrine as adopted by the Washington Supreme Court, each of the 100 cancer patients would be awarded 40 percent of the damages incurred as a result of their deaths. Proponents of the lost chance doctrine argue that all 100 patients will have been properly compensated, because the injury for which compensation is awarded is not their deaths but the diminished opportunity for a better medical outcome.

Nevertheless, under the lost chance doctrine, the 40 patients who have died as a result of medical negligence have arguably been undercompensated to the extent that they only receive partial compensation for their negligently caused deaths. By the same token, to the extent that negligence on the part of their health care providers did not contribute to their deaths, the 60 patients who would have died anyway have arguably been overcompensated by any award, even one limited to the percentage of ultimate harm that is associated with the lost chance of a better outcome.

The “more likely than not” standard and the “lost chance of a better outcome” doctrine each have their adherents. However, both sides would likely agree with the Mohr court’s conclusion that whatever rule applies in cases involving death should also apply in regard to substantial disability.

For questions on this Article: Contact Baltimore Accident Death Lawyers at bobkatzlaw.com

PLEASE NOTE: Materials are NOT Legal Advice or Legal Opinions – All material located on the Sites, in podcasts, blogs, Faqs and/or social media forums is prepared for a general audience for general informational purposes only.  It is not legal advice or a legal opinion.  Its sole purpose is to better educate you about a variety of general legal issues so that you become more educated consumers of legal services.  While Gordon Feinblatt tries to provide accurate information on the Sites, the law changes quickly.  Therefore information contained on the Sites may not reflect the most current interpretation or be complete.  Many factors go into the decision-making process of selecting a lawyer and everyone’s needs differ.  Moreover, although the specific facts of your matter may seem similar to those of others, they are actually quite different;  the law may apply differently or not at all to your situation.  Therefore, you should not rely upon or take any action with respect to your specific, personal legal matters based on information contained on the Sites.  The Sites are provided “AS IS” and Gordon Feinblatt is not responsible for any action you do or do not take in reliance on any materials on the Sites.   Information provided on the Sites should never be a substitute for consulting with a lawyer. Please contact us directly for advice on your specific situation. See our full Terms of Use for more information.

Read Some of Our Recent Client Reviews!

Kelly Kess Malone
Kelly Kess Malone
15:50 20 Nov 18
Very helpful paralegals and attorney assistants. Also informative on various types of cases. Reasonably priced for the work that they provide.
Brittany Peterson
Brittany Peterson
08:19 17 Nov 18
Had a very awesome experience fast settlements... Communication was a A+ ...Strongly recommend Mr.Katz. !!! Ms. Robin made me felt like family was always there when i needed her and when i had a question.
Yarnell Goodwin
Yarnell Goodwin
23:38 15 Nov 18
Got a little more settlement money than expected. Was provided great service and prompt responses. I greatly appreciate it!
Ashley Poole
Ashley Poole
01:05 08 Nov 18
Attorney Bob Katz and his staff are highly recommend. Customer Service was impeccable. Every phone call and email was responded to in a timely manner. Natalie Ulrich was very professional, helpful and thorough every step of the way, which resulted in a stress free experience. I will recommend this law firm to family and friends!
Tania Jefferson
Tania Jefferson
17:51 06 Nov 18
Customer service was A+. All questions were answered promptly and information was shared appropriately. Concerns were addressed and I was made aware of all updates on my case. I would whole heartedly recommend this firm.
edward Robinson
edward Robinson
03:00 06 Nov 18
I highly recommend Mr. Katz and his staff. They were friendly, compassionate and really showed they had their clients best interest at heart. There was never a time you called them they didn't respond or returned your calls and answer your questions.They took the worry, and stress and turn it into reassurance. They were diligent and just down right professional. My wife and I really thank God for allowing us to cross paths on a professional business experience. Ms. Rebecca Slatery is the most courteous, compassionate soul. We wish you all peace, love and blessings. Thank you for your service.
J JR
J JR
20:11 31 Oct 18
I decided to use this firm again for an accident I was involved in. As always they were professional and caring. Rebecca slattery was the paralegal assigned to my case and she was professional and kept me up to date with everything. I would recommend this firm to friends and family!
Cedric Jones
Cedric Jones
19:04 23 Oct 18
Erica Z is amazing with keeping you to date and staying communication with you during the entire process. Meghan Young was a wonderful lawyer made me feel extremely comfortable in the courtroom and she also fights for the best possible outcome for you..GREAT LAW FIRM
Nguyen Le
Nguyen Le
16:44 23 Oct 18
It was a great experience being taken care of by Rebecca Slattery and Meghan Young, they helped me resolve my case and were very courteous and professional. Highly recommend working with this law firm
Soun Gil
Soun Gil
21:35 17 Oct 18
Ms. Park helped me out through my whole accident process. She took her time with me and made sure I understood everything. I would recommend to her all of my friends if they were to get into any accident.
Yejin Chung
Yejin Chung
15:40 12 Oct 18
I highly recommend. My family’s experience with this office was great. Christina Franetovich was very helpful throughout the whole process, which made this experience less stressful. She responded to my questions immediately and made sure that I understood everything.
Claudette Pope
Claudette Pope
13:18 30 Aug 18
I was referred to Gordon & feindblatt in 2014 when my family was in an accident, Mr. Katz personally consulted with me by phone and he was very polite and professional, Mr. Carpuso, one of the litigation attorneys even came out to our home and went over our case with us, he made sure all of our needs was addressed and before he left our home that day I felt like we were old friends. that case was settled and I was very pleased, I have used this law firm twice since then and the results are always the same, I have nothing but great experiences with Gordon & Feindblatt the staff are courteous and professional and they get the job done but the one in particular that really stood out for me is Rebecca Slattery, she is truly a gem, she is so compassionate, she walked me through the entire process, she even checked up on me from time to time just to see how I was feeling and I really appreciated her kindness. I will use this law firm again and again for any future legal issue that may arise and I would highly recommend Gordon & Fiendblatt to friends, family and co-workers.
UniversalSniping
UniversalSniping
02:32 04 Aug 18
The lawyer who was initially handling my case parted ways with the company and I was assigned a new lawyer. This new lawyer was amazing! Christina Franetovich made me feel secure by double checking all the facts and notes in my case so that I was not worried during this transition. I was on disability from an a different accident while she was finalizing my case, and I had called and hounded her about the time frame of my settlement very frequently to the point that I felt guilty for calling so much. Christina was very sympathetic to my situation and assured me that she would do everything in her power to make sure the situation would be resolved quickly. She actually finalized my case before the time frame she had given me, was always very courteous and knowledgable on the phone, and I feel extremely lucky that she ended up handling my case because the previous lawyer was not as amazing with customer service as Christina. She also has a way of making you feel comfortable and builds incredible rapport quickly. I am going to highly recommend her to my friends and family. Thank you Christina!!!
Richard Hose
Richard Hose
02:26 27 Jun 18
On Feb 23, 2017 I was in a bad accident on the JFX. I had been rear end by another driver. Almost immediately I felt pressured by the other drivers insurance. Everything from wanting a recorded statement; to failing to acknowledge responsibility. No one would answer my questions, nor would anyone take responsibility. I was frustrated and overwhelmed with everyone from the towing company, to the repair shop, to the insurance company nightmare I just entered. I reached out to Attorney Robert Katz and I was assured they were here to help. He provided with some much needed information, and told me not to worry, Sarah his Paralegal would be in touch to help get things moving. Sarah reached out as expected and explained their process and walked me through what my expectations would be. She as well assured me they were here to help me navigate the obstacles. What Sarah really did was so much more than help. She took the stress and burden off my shoulders and assumed ownership for handling everything on my behalf. I knew what to expect, and I received regular updates throughout the entire process. Honestly, I received so much more than I anticipated. Some of the most frustrating items to chase after are medical records and hospital charges. While I was trying to recall events and timelines, she had already obtained my records and information. She made this process so painless. I truly cannot say enough about the exceptional service she provided. Many thanks for all your help. Sincerely, Richard Hose
Andrea Barajas
Andrea Barajas
15:13 16 May 18
My husband and I were in a car accident in August 2017. We contacted Bob Katz team for legal representation in our case. Kristen A. Turner was our paralegal and she was excellent. It took 9 months for us to receive our settlement and Kristen kept us updated throughout this entire process. She was very kind and patient as I happened to have several questions. She always answered my questions promptly and thoroughly. I would highly recommend this firm and Kristen if you are in need of legal assistance.
TheOfficalCeeandDee
TheOfficalCeeandDee
15:24 09 Feb 18
My experience here was great. My lawyer Rebecca was so professional and I love her personality. She handled my case well and kept me updated and made the process easy and always made me feel comfortable to call whenever I needed to know anything.
Next Reviews