The Loss of a Chance Doctrine

By Ralph F. Holmes

In a recent medical negligence trial, opposing counsel skillfully attempted to undermine our psychiatric expert's carefully laid testimony on the issue of causation. During his direct examination, the psychiatrist testified that the defendants had prematurely discharged our client from the hospital and that this and other negligence directly caused her to attempt suicide by drinking Drano twelve hours later. On cross-examination, opposing counsel worked hard to recast this causation opinion as merely the view that our client would have had a "better chance" of avoiding the suicide attempt had suitable medical care been provided.

Q Doctor, let me ask the question so there is no confusion. You yourself agree that predicting suicide in any one patient is not possible; is that a fair statement?

A That is fair, but it needs to be qualified.

Q But you agree with that?

A I agree with that, with qualifications.

Q All right. And what you are really saying in this case is that if they had aborted the discharge on June 5th there would have been a better chance that this patient would not have done something impulsive and injurious the next day?

A I'm certainly saying that.

Q And that's really all you can say, to be honest though, isn't it.

A No, it's not all I can say. I can say a lot more about that discharge and how it should have been planned ahead of time and prepared for.

Q I understand. But I'm staying on suicide now. In terms of predicting the suicide, or the attempted suicide, the best you can say -- I'm trying to be fair and honest to both of us here -- is that there would have been a better chance. Because suicide, and even in any one case, you have just agreed, is not predictable. Isn't that right?

A That is correct, with qualifications.

Q I understand. And so what you are saying is that in this case the bottom line is that in your professional opinion there would have been a better chance of no suicidal act if they had backed off, reassessed, and kept her there for some extra period of time?

A And treated her properly.

Q Is that a fair statement? Have I been fair to you on that?

A I think so.

At the close of the plaintiff's case, defense counsel then moved for a nonsuit on the ground that the plaintiff had failed to satisfy her burden of proof on the issue of causation, arguing that the plaintiff's expert testified that the "best" he could say on this issue was that, if non-negligent care had been provided, the plaintiff would have had a "better chance" of avoiding the suicide attempt. The Court correctly denied the motion, given that the psychiatrist had unequivocally testified throughout his examination that this "better chance" was in his view a matter of probability and that, had appropriate care been provided, the plaintiff's suicide attempt more likely than not would have been avoided.

This line of cross-examination of our expert and the ensuing nonsuit motion is a standard defense tactic in medical negligence cases. In these cases, defense counsel routinely, yet carefully, try to coax plaintiff's medical expert to admit that his or her opinion on the issue of causation is that the defendant's alleged negligence merely deprived the plaintiff of a chance of avoiding the claimed injuries and, if this cross-examination is in any way successful, to then move for a nonsuit of the plaintiff's case on the ground that the plaintiff failed to meet his or her burden of proof on the issue of causation.

The legal foundation for this approach is that New Hampshire, unlike most other states, does not accept, at least in the area of medical negligence, the "loss of a chance doctrine."

Courts embracing this doctrine have lessened the plaintiff's burden of proof on the issue of causation by adopting the rule that:

[O]nce a plaintiff has introduced evidence that a defendant's negligent act or omission substantially increased the risk of harm to a person in plaintiff's position, and that the harm in fact has been sustained, it becomes a question of fact for the jury to determine whether that increased risk of harm was a substantial factor in producing the harm.

Under this rule, the plaintiff need not present separate testimony, by expert testimony or otherwise, that the defendant's conduct more probably than not caused the plaintiff's injuries. The burden is met simply by presenting evidence that the defendant's conduct failed to meet the standard of care, this negligence placed the plaintiff at greater risk of harm, and this harm actually resulted.

The Court applied this doctrine in Hernandez v. Clinica Pasteur, Inc.. In Hernandez, the plaintiff visited the defendant clinic with symptoms which should have resulted in an electrocardiogram being administered, but which was not done. He was diagnosed as suffering from gastric distress. The patient was told he had no serious health problems and should exercise more. The patient exercised that evening and was dead by morning from a myocardial infarction. The plaintiff's cardiologist testified at trial that the plaintiff would "probably and possibly" have had a better chance of survival if he had received proper treatment at the defendant clinic. A directed verdict was entered for defendants at trial due to the plaintiff's failure to prove causation. The Florida Appellate Court, however, reversed, holding:

Proximate cause is not a question of science or legal knowledge -- it is a fact to be determined in consideration of all the circumstances. It is only when the facts are susceptible of only one inference that the question is one of law for the court. Otherwise it should be submitted to the jury. . . .

It further appears that once the malpractice was established, the question of causation for the decedent's demise within hours of the malpractice was one which was properly submitted to the jury. . . .

In the case now before us, there was evidence that appellant's decedent was at all times suffering from the condition that ultimately caused his death. The issue of proximate cause was as to whether appellees' malpractice contributed to the cause of death. In this connection, the testimony that appellant's decedent would have had a better chance to survive if he had received prompt medical attention was sufficient to form a basis for the submission of the issue to the jury.

Our court in Pillsbury-Flood v. Portsmouth Hospital, rejected this aspect of the loss of chance doctrine. In Pillsbury, the plaintiff's decedent went to the emergency room of Portsmouth Hospital complaining of head and neck pains a day after he had been in a car accident in which his head had struck the windshield of his car. X-rays were taken and Dr. Graf, an orthopedist, examined the patient's neck. No signs or symptoms of a head injury were found and the patient was discharged. The patient died the next morning from, according to the autopsy, acute subdural hematoma, and suit was instituted against the Portsmouth Hospital. At trial, the plaintiff's expert testified that the medical care and follow-up instructions the patient had received were inadequate and that a CAT scan would have disclosed the accumulation of blood in the patient's subdural area and enabled him to receive the medical care he needed within a few hours.

Citing Hicks v. United States, a leading case endorsing the loss of a chance doctrine, the plaintiff unsuccessfully moved for partial directed verdicts at trial, arguing that, under this doctrine, the burden of causation shifted to the defendants. After the jury returned verdicts for the defendants, the plaintiff appealed, again contending that the loss of chance doctrine applied and required that the burden of proof on the issue of causation be shifted to the defendants.

The plaintiff's arguments misconstrued the loss of chance doctrine in that the doctrine merely allows the plaintiff in a lost chance case to present the issue of causation to the jury if he or she has presented a prima facie case of negligent medical care that created a heightened risk of harm to the plaintiff which harm occurred. In such a case, the jury is then allowed to infer causation from the evidence of negligence and other evidence presented. The burden of proof on causation always remains the burden of the plaintiff and does not shift to the defendant. As the Supreme Court in Pillsbury-Flood stated, "Our review discloses no cases which shift the burden of proof on the issue of causation to the defendant." The Court thus could have ended its discussion there, finding that there was no legal support for the plaintiff's burden shifting argument.

The Court, however, went on to reject the rule adopted in Hicks and other cases that the plaintiff in a loss of chance case is entitled to have the jury decide the issue of causation if a prima facie case of negligence has been presented.

Additionally, we conclude that the Hicks rule--which allows the trial court to relax the causation requirement and submit the issues to the jury if the defendant's negligence increased the risk of harm -- is ill-advised. Causation is a matter of probability, not possibility. We endorse the position taken by the Florida Supreme Court, which stated in similar context:

Relaxing the causation requirement might correct perceived unfairness to some plaintiffs who could prove the possibility that the medical malpractice caused an injury but could not prove the probability of causation, but at the same time could create an injustice. Healthcare providers could find themselves defending cases simply because a patient fails to improve or where a serious disease processes are not arrested because another course of action could possibly bring a better result.

Thus, New Hampshire has rejected the majority view and endorses the rule that the plaintiff must prove by a preponderance of the evidence that the death or injury was proximately caused by the defendant's negligence and a prima facie case must be presented on this issue to avoid a directed verdict and to reach the jury.

While a recent experience demonstrates the "loss of a chance" tactic cannot succeed in circumstances in which a plaintiff's medical expert clearly states the opinion in terms of probabilities, plaintiff's counsel should be familiar with the doctrine and plan to avoid this pitfall in preparing testimony on causation.