Lost Chance as Substantial Factor In Causing Injury: Part 1

In medical malpractice cases, competent poof of a diminished chance for a cure or better outcome or increased injury and pain and suffering may be a substantial factor or proximate cause of injury. Part 1 of this two-part series deals with such evidence as presented in failure to diagnose and treat cancer cases.

In medical malpractice cases competent poof of a diminished chance for a cure or better outcome or increased injury and pain and suffering may be a substantial factor or proximate cause of injury. Part 1 of this article will deal with such evidence as presented in failure to diagnose and treat cancer cases while part 2 of this article will address such evidence as presented in failure to diagnose other medical conditions and illness.                                      

The issue of whether a doctor’s negligence is more likely than not a proximate cause of plaintiff’s injury is usually for the jury to decide. Kallenberg v. Beth Israel Hospital, 45 A.D.2^nd 177(A.D.2^nd 1974), affirmed 37 N.Y.2^nd719 (Court of Appeals).

In medical malpractice cases involving a delayed diagnosis of disease or medical condition, competent evidence that the negligent delay caused the plaintiff additional pain and suffering, further treatment and/or a diminished chance of survival or cure due to progression of the condition or disease is sufficient. Polanco v. Reed, 105 A.D.3^rd 438(A.D.1^st.2013).

In the seminal case of Kallenberg, supra., the First Department upheld plaintiff’s jury verdict as supported by sufficient evidence and expert testimony proving departure in failing to administer Naturetin over several days to treat high blood pressure causing bleeding aneurysm deprived plaintiff’s decedent of life saving surgery in which she had “a 20 say 30 or 40 percent chance of survival.” The expert testified that if the medication had been given surgery would have been performed. Thus, the failure to give this medication was a “producing, contributing factor to this woman’s death. “

Subsequently, in Mortensen v. Memorial Hospital, 105 A.D.2^nd 438 (A.D.1^st 1984), the First Department in a lengthy decision discussed the facts in Kallenberg, supra., and affirmed the trial court’s charge on proximate cause as to whether the defendant’s malpractice deprived plaintiff of a substantial possibility of saving the leg (containing a tumor mass ultimately requiring amputation). The plaintiff alleged that Dr. Robert Rakov was negligent in not reoperating immediately upon discovering the size of the mass or taking other appropriate action to refer the plaintiff.

The court stated the concepts of “substantial factor in bringing about an injury” and “substantial possibility of avoiding the injury “are virtually indistinguishable. “…That this jury understood that Dr. Rakov’s malpractice had to be a substantial factor in bringing about the loss of plaintiff’s leg—by depriving him of a substantial possibility of avoiding amputation—is clear, as evidenced by its last note…” The jury found Rakov negligent for not taking any further action after the partial excision of the tumor but, in light of the existing pathology, was unable to find that his inaction was a proximate cause of the amputation.

In its discussion the court in approving the “substantial possibility” charge cited the Third Department’s decision in O’Connell v. Albany Med.Center Hospital, (101 A.D.2^nd 637,638) which in affirming a plaintiff’s verdict, noted that the charge permitted a jury to find based on the testimony of plaintiff’s expert, “That there was a substantial possibility that plaintiff’s *** recovery would have been faster, less painful and less disabling but for the malpractice of defendant.”

The Appellate Divisions are in agreement that expert testimony in support of such a claim need not quantify the extent or percentage to which the alleged departure from accepted standards decreased the chance of a better outcome or increased the injury so long as there is sufficient evidence to prove that the departure more likely than not caused this injury. Barbara Goldberg v. Isadore Horowitz, 73 A.D.3^rd 691(A.D. 2^nd.2010); King v. St.Barnabas Hose,87A.D.3^rd 238(A.D. 1^st 2011); Clune v. Moore,142 A.D.3^rd 1330 (A.D. 4^th 2016; D.Y. v. Catskill Reg’l Med.Ctr.,156 A.D. 3^rd 1003 (A.D. 3^rd 2017).

In Polanco, supra., the plaintiff, who was previously treated for breast cancer, alleged the defendant committed malpractice in failing to timely notify her of positive lymph node findings on a PET Scan suspicious for metastatic disease. A second PET Scan 6 months later showed progressive findings. The plaintiff alleged the 6-month delay in learning the results of the PET Scan and diagnosis of metastatic breast cancer recurrence caused increased breast pain, progression of the disease as manifested by the increased size of the lymph nodes, lung surgery, a reduced chance of recovery and 10% diminution in her life expectancy.

The First Department held that the Motion Court erroneously decided issues of fact stating where oncology experts present competing opinions on causation, particularly about the progression of the disease, there is an issue of fact for the jury to decide. Whether a diagnostic delay affected a patient’s prognosis is typically an issue of fact that should be presented to the jury.

In Hughes v. New York Hospital-Cornell Medical Ctr. 195 A.D.2^nd 442(A.D.2^nd 1993) medical expert testimony that a two-week delay in testing or referring the patient who was coughing up blood to a lung specialist was responsible for additional suffering and a diminished chance of survival or death which was earlier than it might have been (Mr. Hughes died from advanced lung cancer a mere 6 weeks after his initial hospital discharge). This evidence was sufficient to reverse dismissal of the complaint as a matter of law and grant a new trial.

The Second Department noted that the jury may have reasonably inferred that the cancer was spreading rapidly, and there was no evidence that starting treatment 2 weeks earlier would have had no effect. It is possible to conclude that a few more weeks or months of life were possible but for the omission. Further, the court states that it cannot be said with absolute certainty that Hughes would not have had a chance to survive even longer given his age and active life style.

More recently, in Wager v. Rao, 178 A.D.3^rd 434 (1^st.2019), the First Department found plaintiff’s expert’s affidavit sufficient to deny summary judgment in setting forth that delayed diagnosis of lung cancer caused decedent’s cancer to progress from very treatable stage 1 to terminal stage 4 at the time of diagnosis resulting in death. The court stated even though both parties’ experts did not really know the status of decedent’s condition at that time of the alleged delay the experts could base their opinions on their knowledge of the rate of progression of this particular type of cancer.

In Calvin v. N.Y.Med Group P.C., 286 A.D.2^nd 469(A.D.2^nd 2001), the Second Department affirmed a jury verdict for the plaintiff (ultimately sustaining $667,775) based on expert testimony that malpractice resulting in a 2-week delay in the diagnosis of high-grade non-Hodgkin’s lymphoma was a cause of death several days after the diagnosis.

The Appellate Court finds that the plaintiff’s expert witnesses established that Dr. DeWitt’s departures from good and accepted standards of medical care were a substantial factor in causing the decedent’s death, “The plaintiff simply had to show that “it was probable that some diminution in the chance of survival had occurred.”

Here, the jury’s choice to give more credence to the plaintiff’s expert witness was a fair interpretation of the evidence.

In Scanga v. Family Practice Assocs. of Rockland, 302 A.D.2^nd 443 (A.D.2^nd 2003), the Second Department affirmed the denial of summary judgment to the doctors where there was no showing that a 3-4-month delay in the diagnosis of decedent’s colon cancer was not a substantial factor in shortening the length of the decedent’s life. Although defendants’ medical expert opined that the cancer was “unresectable” regardless of when diagnosed and that “beginning chemotherapy 3 or 4 months earlier would have had an insubstantial effect on how long plaintiff would live or on the quality of his remaining days,” it failed to establish that the delay was not a substantial factor in shortening the length of Scanga’ s life.

In Neyman v. Doshi Diagnostic Imaging Servs.P.C., 153 A.D.3^rd 538( A.D.2^nd 2017)., the Second Department, in reversing summary judgement for the defendant, referred to the detailed medical affidavit of plaintiff’s medical expert that the 7 month delay in diagnosing plaintiff’s breast cancer more likely than not deprived the plaintiff of a chance for a cure and the immense suffering of the continuing cancer therapy and eventual progression of the cancer would have been avoided.

Had a mammogram been timely obtained (this was the alleged departure), more likely than not, the breast tumors would have been detected at an early stage. The expert opined that the tumor was “fast growing “with a “relatively short doubling time “, and that “delays in diagnosis when dealing with a fast-growing tumor “such as plaintiff’s, “are quite significant in negatively impacting the plaintiff’s outcome.” Further, the expert opined that the cancer in March 2006 was at most a stage one or two, and that the failure to diagnose at that time proximately caused Olena to lose the chance for a better outcome, including the elimination of the cancer through excision and chemotherapy. The expert pointed to plaintiff’s positive response to chemotherapy, which extended her life, despite the numerous bony metastasis present at diagnosis, for over 2 years and 7 months after her diagnosis and mastectomy.

The court stated that where oncological experts present competing opinions on causation, particularly about the progression of the disease, there is a triable issue of fact to decide. Citing Polanco, supra.

As to causation, the Second Department in Neyman, supra., held that 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 injury was caused by the defendant. Further, “As to causation, the plaintiff’s evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant’s act or omission decreased plaintiff’s chance of a better outcome or increased his injury, 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 injury,”

In Luna v. Spadafore, 127 A.D.3^rd 933(A.D.2^nd 2015), the Second Department affirmed a 6.8 million jury verdict in favor of the plaintiff finding that there was a valid line of reasoning and permissible inferences from which the jury could have rationally concluded that the physicians departed from good and accepted medical practice and that the 13-month delay in obtaining a biopsy to diagnose plaintiff’s thyroid cancer proximately caused her to have a worsened prognosis or decreased 10-year survival rate.

The Appellate Court concluded that “where both sides present expert testimony in support of their respective portions, it is for the jury to decide which expert’s testimony is more credible.”

Denial of summary judgment was affirmed by the Third Department in Provost v. Hassam 256 A.D.2^nd 875(A.D.3^rd 1988) based on expert affidavits that defendant committed malpractice in not timely performing a breast biopsy causing an 8-month delay in the diagnosis of plaintiff’s cancerous mass. Further, said expert opined to within a reasonable degree of medical certainty that had the cancer been timely diagnosed, plaintiff’s tumor would have been much smaller and she would not have suffered metastasis to the axillary lymph node. The expert further opined that a timely diagnosis would have increased plaintiff’s chances for long-term survival. Thus, this expert’s testimony raised a factual issue for the jury to decide.

In Feldman v. Levine 90 A.D.3^rd 477(A.D.1^st 2011) the First Department reversed the court below and reinstated a $1.2 million verdict in favor of the plaintiff based on malpractice causing a delay in the diagnosis and treatment of plaintiff’s lung cancer. There was evidence to conclude that the negligent delay in diagnose caused plaintiff pain and suffering, diminished her chance of survival and hastened her death.

The court stated that the oncological issues presented by the competing causation experts, namely the rate of progression of decedent’s cancer, do not involve the type of novel methodology requiring a Frye hearing. The experts disagreement as to whether the lung cancer was present and could have been diagnosed during plaintiff’s treatment with defendant prior to the diagnosis of Stage IV lung cancer was a jury issue. Moreover, the medical literature cited by plaintiff supported the methodology used by plaintiff’s expert to estimate the progression of decedent’s cancer.

In Schaub v. Cooper 34 A,D.3^rd 268(A.D.1^st 2006) the First Department reversed summary judgment for the defendant holding that plaintiff’s experts did not concede that decedent’s cancer was incurable after June 1999 but only that her chances for survival had decreased. Factual questions remained as to whether defendant’s delay in testing or referring the decedent to a specialist diminished her chances for survival.

In essence, plaintiff’s expert oncologist created a fact issue by opining that the 10 month delay in diagnosis of plaintiff’s gastric cancer caused the cancer to progress from a Stage 1A cancer, as it had not spread to the liver, with a 78% five (5) year survival rate to a Stage IV cancer which at the time had a 7% five (5) year survival rate.

The Appellate Court holds that the defendant did not meet his initial burden of proof and we cannot conclude that the delay in testing or referring decedent was not responsible for a diminished chance of survival or death which was earlier than it might have been.

In Borawski v. Huang, 34 A.D.3^rd 409(A.D.2^nd 2006) a malpractice case for delayed diagnosis of stomach cancer, the Appellate Court reversed dismissal of plaintiff’s complaint at the close of the evidence and granted plaintiff a new trial.

The court held:

Where, as here, a failure to treat is alleged, the plaintiff simply must show that “‘it was probable that some diminution in the chance of survival had occurred’” (Calvin v. New York Med. Group, 286 AD2d 469, 470, 730 NYS2d 337 [2001] quoting Jump v. Facelle, 275 AD2d 345, 346, 712 NYS2d 162 [2000]).

 In Gagliardo v. Jamaica Hosp., 288 A.D.2^nd 179 (A.D.2^nd 2001) the Second Department held that the Supreme Court committed error requiring a new trial in denying plaintiff’s request to instruct the jury that a deprivation of a substantial chance for a cure can constitute a proximate cause of a decedent’s injuries and/or death ( the jury found a departure in failing to perform a sonogram to detect testicular cancer but no proximate cause of death 16 months later ).

Thus, it is clear that establishing a prima facie case in delayed diagnosis of cancer cases will succeed or fail based on the sufficiency and details of the experts’ opinions and evidence in support of or in opposition to how the delay impacted plaintiff’s medical condition, diagnosis, staging, prognosis and chances for cure or improved outcome.

This necessarily requires comparison of cancer status and treatment at time of diagnosis versus at the alleged time when the cancer should have been diagnosed. The expert must address how, why and to what extent did the delayed diagnosis impact or not impact the plaintiff’s chances for cure or longer life expectancy or increase plaintiff’s injuries, pain and suffering and/or require further treatment.

Part 2 of this article will address lost chance in medical malpractice cases alleging delayed diagnosis and treatment of other medical conditions and illness.

Alan W. Clark is of counsel at Duffy & Duffy, LLC, and managing partner of The Law Firm of Alan W. Clark and Associates. He is board certified in professional medical liability by the ABPLA.