Lost Chance as a Substantial Factor in Causing Injury: Part 2

Part 1 of this article addressed proof of diminished chance for a cure or better outcome or increased injury and pain and suffering as a substantial factor or proximate cause of injury in failure to diagnose cancer cases. This article will address the application of law and evidence to medical malpractice cases dealing with failure to diagnose other medical conditions and illness.

The Second Department in Jump v. Facelle, 275 A.D.2d 345 (A.D.2d 2000) reversed the lower court’s setting aside of the verdict in favor of the plaintiff and reinstated the verdict finding the plaintiff’s expert’s testimony tends to establish that the negligent 11 or 12 hour delay in performing surgery increased the harm to the decedent by infection and decreased his chances of survival. There is also evidence that the decedent became septic over the 11-hour period of delay.

The Appellate Court held there was legally sufficient evidence of causation stating that in cases like these, the plaintiff’s expert need not quantify the exact extent to which a particular act or omission decreased a patient’s chances of survival or cure, as long as the jury can infer that it was probable that some diminution in the chance of survival had occurred.

Also see cases finding delay of 24 hours in recommending surgery for brain abscess diminished chance for better outcome or increased injury. Dockery v. Sprecher, 68 A.D. 3d 1043 (A.D.2d 2009); delay of 24 hours in performing C-section was a substantial factor. Alicea v. Liguori, 54 A.D. 3d 784 (A.D.2d2008); and finding four (4) minute delay in performing C-section a substantial factor in contributing to the infant plaintiff’s brain damage. Flaherty v. Fromberg, 46 A.D. 3d 743 (A.D.2d 2007).

            In Stewart v. New York City Health and Hosps.Corp, 207 A.D.2d 703 (A.D.1^st 1994), the First Department reinstated a plaintiff’s verdict holding that loss of even a 5-10% chance of conceiving naturally as testified to by defendant’s expert was sufficient to prove causation and allow the jury to find a verdict of $500,000 in favor of the plaintiff (the amount was reduced to $300,000).

The Appellate Court, disagreeing with court below holds as follows:

“Thus, plaintiff did not, as defendant contends, have to prove that defendant’s negligence “deprived [her] of the ability to conceive and bear children naturally.” Rather, plaintiff merely had to prove that defendant’s negligence was the proximate cause of the loss of plaintiff’s right fallopian tube and [***4] that such negligence deprived her of a substantial possibility of that ability. And if the jury found that she lost even a 5 to 10 percent chance of having a successful pregnancy as a result of sexual intercourse and that this chance was “substantial,” a verdict in her favor would be justified.”

In Barbara Goldberg, supra., a case involving alleged departure in failing to recognize EKG changes of cardiac ischemia at rest resulting in decedent suffering a massive heart attack causing death, the Second Department in reversing dismissal of the action by the court below pursuant to CPLR 4401, explained proximate cause as follows:

In a medical malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not’ that the defendant’s deviation was a substantial factor in causing the injury (citations omitted).

Further,

a plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, “as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury. (Alicea v. Liguori, 54 AD3d at 786 [internal quotation marks omitted]; see Flaherty v. Fromberg,46 AD3d at 745; Jump v. Facelle, 275 AD2d 345, 346, 712 NYS2d 162 [2000].

The Third and Fourth Departments are in accord with this rationale. Clune, supra; D.Y. v. Catskill Reg’l Med.Ctr. supra.

In reversing a directed verdict pursuant to CPLR 4401 in favor of the defendant at the close of plaintiff’s case, the Fourth Department in Clune, supra, explains:

“Where, as here, the plaintiff alleges the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury in the patient may be predicated on the theory that the defendant thereby ‘diminished {the patient’s} chance of a better outcome, ‘in this case survival (citations omitted). In that instance, the plaintiff must present evidence from which a rational jury could infer that there was a ‘substantial possibility ‘that the patient was denied a chance of a better outcome as a result of the defendant’s deviation from the standard of care (citations omitted)…However, ‘ a plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the [ patient’s ] chance of a better outcome…. ‘as long as evidence is presented from which the jury may infer that defendant’s conduct diminished the [patient’s] chance of a better outcome’ (citations omitted).”

The court in Clune, supra, held that plaintiff’s expert presented legally sufficient evidence that the negligence of the defendants’ deprived the decedent of the substantial possibility of surviving the bowel perforation and resulting peritonitis that led to death. Also stated is that the defendants’ departures substantially diminished decedent’s chance of surviving the bowel perforation and infection.

The Third Department in D.Y.v.Catskill Reg’l Med.Ctr.,supra., utilized the same language and reasoning in affirming denial of defendant’s motion for a directed verdict in a case involving delayed diagnosis and treatment of appendicitis causing a perforation and a large abscess to develop requiring hospitalization to tertiary care medical center and insertion of a percutaneous line.

The court pointed out that even if the jury accepted defendant’s argument that an earlier diagnosis would have led to a more invasive surgical procedure, he or she could still conclude that the defendant’s failure to expand the diagnosis and order an earlier CT scan caused the child, at a minimum, to endure unnecessary pain and suffering while he awaited a diagnosis and treatment that would fully address his underlying condition and symptoms.

The Third Department holds that in cases of delayed diagnosis and treatment of a condition, proximate cause may be predicated on the theory that the defendant “diminished the [ patient’s] chance of a better outcome or increased the injury (citations omitted).” The expert’s failure to quantify the extent to which the delayed diagnosis and treatment diminished the chance for a better outcome or increased the injury is not fatal to the establishment of proximate cause, so long “as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased his [of her] injury (citations omitted).”

In Gaspardi v. Aronoff, 153 A.D. 3d 795 (A.D.2d 2017) the Second Department affirmed a $1 million jury verdict for the plaintiff based on claims that he was not properly advised of the signs and symptoms of a colon perforation following a colonoscopy, and that defendant failed to properly treat the perforation causing plaintiff to undergo a Hartmann procedure removing a foot of his colon and subsequent surgeries for reversal of colostomy and hernia repair.

The Second Department, again using substantially the same language in discussing proximate cause as the other departments held that plaintiff presented sufficient expert testimony and evidence to prove that defendant’s conduct diminished the plaintiff’s chance for a better outcome or increased his injury.

The court explains:

…Establishing proximate cause in medical malpractice cases requires plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing plaintiff’s injury (citations omitted). …A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, so long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance for a better outcome or increased the injury (citations omitted ).

In the more recent Second Department case of Danielle v. Pain Mgmt.Ctr.of Long Island, 168 A.D. 3d 672 (A.D.2d 2019), the court found plaintiff’s expert testimony and evidence legally sufficient to support a plaintiff’s verdict based on claims that the defendants failed to timely diagnose and treat an infection and resulting spinal abscess which led to permanent neurological damage. However, the court reversed the verdict and granted defendants a new trial based on the trial court’s erroneous rulings limiting cross-examination of plaintiff’s experts regarding the alleged negligent conduct of nonparty subsequent treating surgeons.

The court in Danielle used almost the identical language set forth above in discussing causation and finding plaintiff’s evidence sufficient to prove that defendant’s departures from accepted medical practice decreased the plaintiff’s chance for a better outcome or increased her neurological deficits.

The same principles were applicable in D’Orta v.Margaretville Mem’l Hosp.,154 A.D. 3d 1229 (A.D. 3d 2017), a Third Department case affirming denial of defendants’ motions for summary judgment regarding plaintiff’s malpractice claims that defendants failed to timely transfer plaintiff and administer TPA (clot buster drug) to treat a stroke which plaintiff contends would have reduced his neurological deficits suffered from the stroke.

The court found sufficient plaintiff’s expert’s opinion “ that TPA has been proven to improve long-term outcomes for stroke victims as well as his conclusion that ‘ the failure to administer [TPA] deprived [ plaintiff ] of a substantial possibility for a better long term neurological outcome , meaning a substantial chance for improved speech, movement and cognition. …”

In King v. St. Barnabas Hose, a case involving negligent resuscitation efforts resulting in the death of decedent, the First Department reversed summary judgment in favor of defendants, finding plaintiff’s expert adequately raised triable issues of fact as to whether defendants departed from accepted practice in their resuscitation attempts and that such departures diminished the chance of survival. Plaintiff established that a defibrillator should not have been used as decedent was in asystole and that there was a 6-10-minute delay in administering epinephrine and 18 minutes in giving atropine all diminishing decedent’s chance for survival.

Given the body of case law that exists, it is hard to believe that the New York Pattern Jury instructions (PJI) does not provide for a specific charge to the jury in lost chance cases. Although the 2020 commentary to the medical malpractice charge PJI 2:150 does discuss at length loss of chance (see pages 81-85) the proximate cause charge PJI 2:70 does not. As experienced counsel know, the proximate cause charge is brief, and, amazingly the commentary does not address this subject matter.

The one sentence charge defines substantial factor in bringing about the injury as “if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.” However, the charge does add that in cases of comparative negligence or concurrent causes that to be substantial it can not be slight or trivial. “You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it.” (PJI 2:70).

Perhaps a supplemental jury charge to PJI 2:70 could read: The plaintiff must prove by a preponderance of the credible evidence that the defendant’s departure from accepted medical practice was more likely than not a substantial factor in causing plaintiff’s injury. In this case the plaintiff alleges that the injury suffered is a diminished chance for a cure or better outcome or increased injury and/or prolonged pain and suffering and/or further care and treatment (to be tailored to the specific case). Therefore, you must decide whether plaintiff has proven by a preponderance of the credible evidence that the defendant’s departure, more likely than not, deprived the plaintiff of a substantial chance or possibility for a better outcome or increased his or her injury and/or prolonged pain and suffering and/or further care and treatment. In this regard in order to be substantial the plaintiff’s evidence does not have to be more than 50% nor quantify or state a percentage to which the defendant’s departure deprived the plaintiff of a chance for a better outcome or increased his or her injury so long as it is not slight and there is sufficient evidence to prove that the plaintiff was deprived of a chance or possibility for a better outcome or suffered increased injury.

The Court of Appeals in Wild v. Catholic Health Sys, 21 N.Y.3d 951 (Court of Appeals, 2013), a malpractice case involving a claim of delayed diagnosis of a perforated esophagus in an 83-year-old woman requiring a feeding tube (she died three years later of unrelated causes), although not squarely addressing lost chance (the issue not properly raised by defendants during the trial) did not find improper the following jury charge by the trial court on causation:

The negligence of any of the defendants may be considered a cause of the injuries to (decedent) if you find the defendant (s’) actions or omissions deprived [decedent] of a substantial possibility of avoiding the consequences of having a permanent feeding tube. The chance of avoiding a need for a permanent feeding tube to be substantial, does not have to be more likely than not and it does not have to be more than 50%, but it has to be more than slight.

Conclusion

In view of the above case law and ambiguous jury charge, it is highly recommended that counsel address proximate cause issues in lost chance cases during jury voir dire. These cases can easily be lost if jurors will not accept the given proof and applicable law that lost chance does not have to be greater than 50% so long as it is not slight or trivial. Jurors must be willing to award substantial damages where the proof meets this threshold. Many jurors have strong beliefs, values or biases on these issues. These need to be elicited and jurors excused for cause. Otherwise, the case is over before the proof begins.

Alan W. Clark is of counsel to the Law Firm of Duffy & Duffy in Uniondale and managing partner of the Law Firm of Alan W. Clark and Associates.