State Supreme Court Holds that “But For” Test is the Standard for Loss of Chance in Medical Malpractice Cases

This case involved a medical malpractice action for a lost chance. The parties jointly sought direct discretionary review under Washington law, RAP 2.3(b)(4), challenging two pretrial rulings:

(1) whether a court should use a “but for” or “substantial factor” standard of causation in loss of chance cases; and (2) whether evidence relating to a contributory negligence defense should be excluded based on the plaintiff’s failure to follow his doctor’s instructions.

The trial court decided that the “but for” standard applies and the contributory negligence defense was not appropriate in this case. “Traditional tort causation principles guide a loss of chance case.” Applying those established principles, under the circumstances here, the Supreme Court concluded a “but for” cause analysis was appropriate and affirmed the trial court’s ruling on that issue. The court reversed the trial court’s partial summary judgment dismissing the contributory negligence defense. The case was remanded for further proceedings.

On Sept. 1, 2011, David Dunnington saw his primary care provider. He reported that he had a lesion on the plantar surface of his left foot that came about after he suffered a puncture wound. The doctor arranged for him to  see a podiatrist at Virginia Mason Medical Center.

The same day, he saw the podiatrist, who diagnosed the lesion as a pyogenic granuloma, which is a benign lesion. The podiatrist recommended two possible courses for treatment: to remove it surgically or to treat it with cryotherapy. 

Dunnington chose the conservative treatment, which didn’t work. He came back 10 days later, and this time the lesion was removed surgically and then sent for a biopsy. The doctor told him to return in 10 days, but he did not come back for that appointment. Still complaining of pain, he did return to this doctor and requested an MRI. The podiatrist noticed at this visit that the lesion had grown in size.The podiatrist recommended another surgical excisional biopsy. Dunnington said that before he agreed, he wanted to discuss this with his family.

He went to see Dr. Bierman for a second opinion. Dr. Bierman had the same opinion and once more Cunnington chose conservative treatment. On Jan. 31, 2012, Dunnington consulted a dermatologist who did a punch biopsy. This resulted in a positive finding of melanoma. On Feb. 16, 2012 he underwent surgical excision and the cancer was removed; however, it came back. Cunnington went through a regimen of chemotherapy and radiation, which proved to be unsuccessful. His left leg was later partially amputated. It seems now that he is cancer free.

Dunnington filed a medical malpractice lawsuit against Virginia Mason alleging that the podiatrist, Dr. Ngan, was negligent in his diagnosis, which deprived him of a 40% chance that the melanoma would not recur had a proper diagnosis and treatment occurred. The defendant, Virginia Mason, filed an affirmative defense saying that Dunnington was contributorily negligent because he delayed in following up, and he chose to seek a second opinion rather than undergoig the recommended excision and biopsy.

Dunnington moved to strike the affirmative defense or for partial summary judgment. Based on declarations, the court granted the motion, which the parties treated as a grant of summary judgment. The trial judge also granted his motion for a loss of chance jury instruction but denied his request for a substantial factor test instruction. The court determined that a “but for” causation standard is the appropriate legal standard.

In Illinois, the lost chance doctrine is applicable in cases claiming injury to an individual that arises in medical malpractice cases. The application of the lost chance doctrine was made in a medical negligence case where the patient is injured and the treatment is alleged to have (1) damaged or decreased the patient’s chance of survival or recovery or (2) either lessened the effectiveness of a patient’s treatment or subjected the patient to an increased risk of harm. Holton v. Memorial Hospital, 176 Ill.2d 95, 98 (1997). The plaintiff, if a similar case should it be in Illinois, would need to only prove to reasonable degree of medical certainty, more probably true than not, that the medical malpractice proximately caused an increased risk of harm or lost chance of recovery. It doesn’t matter how small or large that loss of chance is.

In the Dunnington case, the state supreme court held that, “A plaintiff making such a claim must prove duty, breach, and that there was an injury in the form of a loss of a chance caused by the breach of duty. To prove causation, a plaintiff would then rely on established tort causation doctrines permitted by law and the specific evidence of the case.” The court then stated that the but for test standard is the applicable standard. A key distinction of loss of chance cases is that regardless of the negligence, the ultimate injury is likely to occur. Thus, if it was held that the underlying medical condition, such as cancer, was also a cause of the lost chance to recover, then the court would essentially be holding that in every loss of chance case, the two causes, the negligence and the underlying medical condition produce an identical harm. This would render a substantial factor test applicable in every loss of chance case involving medical malpractice.  Because there was no fit into an exception, the substantial factor test was inappropriate.

In conclusion, traditional tort causation principles guide a loss of chance case. Here, the “but for” test was appropriate and affirmed the trial court on that issue and reversed on the dismissal of the contributory negligence defense. The case was sent back to the trial court for further proceedings.

Dunnington, et al. v. Virginia Mason Medical Center, et al., No. 91374-9 (In the Supreme Court of the State of Washington, (Feb. 2, 2017)

Kreisman Law Offices has been successfully handling medical malpractice lawsuits, nursing home abuse cases, birth trauma injury cases and hospital negligence cases for individuals, families and loved ones for more than 40 years in and around Chicago, Cook County and their surrounding areas including Bridgeview, Maywood, Highland Park, Arlington Heights, Schaumburg, Schiller Park, Deerfield and Wilmette, Ill.

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