Loss of Chance
Also under Professional liability
The issue in this case was whether the trial court properly refused a jury instruction that would have allowed liability under a "loss-of-chance" theory of recovery (more properly, a "loss of less-than-even chance" theory of recovery) in a medical liability suit.
The AMA strives to avoid the expansion of professional liability theories against physicians, which can lead to abusive malpractice litigation.
Jeffrey Geesaman sought emergency medical care at St. Rita's Medical Center. He had been experiencing dizziness, loss of balance, slurred speech, vomiting, and problems with his vision. He also indicated that his mother had died of a stroke at age 45.
The attending emergency physician suspected that Mr. Geesaman might have suffered a stroke. He consulted with other physicians, ordered a number of medical tests, including a brain MRI, and performed his own examination. Jon Cox, D.O., a neurologist, read the MRI and found it normal. Based in part on Dr. Cox's reading of the MRI, the various physicians ultimately concluded that Mr. Geesaman had not had a stroke. Several days later, they discharged him from the hospital with five prescriptions and detailed treatment instructions. However, they did not advise him to take aspirin or another anti-coagulant.
Three days later, Mr. Geesaman returned to the St. Rita's emergency room. Further tests were conducted, and at this point it became clear that he had had a stroke. Mr. Geesaman's treating doctors also concluded that the first MRI had shown that he had had a stroke prior to his earlier visit, but Dr. Cox had misread the results. As a result of his strokes, Mr. Geesaman suffered brain damage, leaving him permanently disabled.
Mr. Geesaman and his wife then sued St. Rita's and various physicians, including Dr. Cox. During discovery, Dr. Cox admitted that he had breached the standard of care by misreading the MRI. Prior to the trial, Dr. Cox filed a motion in limine asking that the Geesamans be prohibited from introducing evidence or arguing to the jury as to a loss-of-chance or loss of a less-than-even chance of recovery, and the trial court granted this motion.
During the trial, the evidence showed that even if Dr. Cox had read the MRI correctly and Mr. Geesaman had been correctly diagnosed and treated for stroke on his first emergency visit, he would still probably have suffered from the second stroke. The Geesamans tendered a jury instruction that would have allowed the jury to find liability against Dr. Cox, because his negligence had caused Mr. Geesaman to lose the less-than-even chance of avoiding the second stroke. However, the trial court rejected that instruction.
The jury returned a verdict in favor of all the defendants, including Dr. Cox. They found that his negligence, although conceded at trial, had not proximately caused injury to Mr. Geesaman. The Geesamans appealed the judgments in favor of Dr. Cox and one of the co-defendant physicians. On appeal, the Geesamans claimed that the trial court erred by refusing to allow evidence of or a jury instruction concerning a loss-of-chance theory of recovery. The Court of Appeals agreed with the Geesamans, reversed the judgment and ordered that the case be remanded.
Dr. Cox petitioned the Ohio Supreme Court for discretionary review, and the Ohio Supreme Court granted his petition. Oral argument was heard on October 12, 2010.
On December 9, 2010, the Supreme Court sua sponte dismissed the appeal, finding that its prior decision to grant discretionary review had been improvidently granted.
Litigation Center involvement
The Litigation Center, along with the Ohio State Medical Association, filed an amicus curiae brief asking the Ohio Supreme Court to grant discretionary review. The Litigation Center and the OSMA also filed an amicus brief on the merits of the case.
Also under Abusive litigation against physicians
The issue in this case is whether Oregon should recognize the “loss of chance” doctrine as a theory of recovery in a medical malpractice suit.
The AMA opposes lawsuit abuse in medical malpractice claims, and the contemplated cause of action would lend itself to such abuse.
Joseph Smith presented at the emergency room of a hospital owned by Providence Health & Services – Oregon, complaining of a headache and distorted vision. The emergency room physician, Linda Desitter, MD concluded that his symptoms had been caused by his taking a sleep aid earlier that day, and she discharged him. The following night, he returned to the emergency room, with the same complaints. Dr. Desitter prescribed Vicodin and again discharged him. Dr. Desitter never prescribed aspirin.
Two days later, Smith met with another physician, Michael Harris, MD, complaining of the same symptoms. Dr. Harris ordered an MRI, but, like Dr. Desitter, he did not prescribe aspirin.
Smith’s symptoms worsened. When the MRI was ultimately performed, it showed substantial brain damage from a stroke. These damages turned out to be permanent.
Smith then sued the hospital, Dr. Desitter and Dr. Harris (and their medical practice groups) under the “loss of chance” theory. While Smith did not dispute that he probably would have suffered the stroke in any event, he alleged that he might have had a better outcome, but for what he claimed to be the defendants’ negligent diagnoses and treatment. He estimated the likelihood of a better outcome at 33%. The defendants moved to dismiss the suit for failure to state a claim, and the trial court granted the motion. Smith appealed, but the Oregon Court of Appeals affirmed.
Smith has now appealed to the Oregon Supreme Court. The issue for review is “Does Oregon recognize recovery for ‘loss of chance’ in personal injury cases?”
Litigation Center involvement
The Litigation Center, along with the Oregon Medical Association filed an amicus brief to support the defendants and oppose adoption of the loss of chance doctrine.
Supreme Court of Oregon brief