"A Lost Chance of Survival or Cure"

There has been an interesting split of authority as this theory evolves in this country. On the one side, are those states which maintain that to recover for such an injury, it must be demonstrated that, prior to the negligent act, it was likely that the plaintiff would survive or be cured and that subsequent to the act it has become likely that he would not survive or be cured. On the other side of this issue are those states which maintain that all that must be demonstrated is that there has been a significant reduction in the chance of survival or cure. These states do not require that the plaintiff prove that it was ever probable that he would have survived or been cured without the intervening negligence. All that is required is that his chances have been reduced.

To understand these views and the impact on the Florida practitioner, it is helpful to review the facts of several cases. In this regard, it should be noted that Florida falls into the category of states in which the plaitiff must demonstrate that there was a probability that he would survive or be cured before the incident and that probability has now been lost. The leading case in this state on the issue was recently decided by the Florida Supreme Court. There, a patient was suffering from low abdominal pains and fainting spells while at home. As a result of these difficulties, he was taken to the emergency room of a local hospital. The physician who was called upon to attend the patient arrived just about the time the patient was going into cardiac arrest. Unfortunately, the patient died shortly thereafter in spite of the efforts of the health care providers. The autopsy revealed a ruptured abdominal aortic aneurysm. While attempting to recover in this case, the plaintiffs were never able to demonstrate that even had a diagnosis and surgery occurred more quickly, that there would have been a likelihood of survival. The plaintiffs recognized this hole in their proof and attempted to convince the court to apply the test utilized by the second group of states. That is, that the provider's failure deprived the patient of some degree of chance of survival and his estate should therefore be compensated. In considering the matter, the court rejected the plaintiffs argument and maintained the traditional test utilized in Florida which is defined as the "but for" test. In essence, this means that as the plaintiff could not prove that "but for" the negligence he would probably have survived, the estate could not recover damages.

Relaxing the causation requirement might correct a 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. Health care providers could find themselves defending cases simply because a patient failed to improve where serious disease processes are not arrested because no other course of action could possibly bring a better result. No other professional malpractice defendant carries this burden of liability without the requirement that the plaintiffs prove the alleged neglect probably rather than possibly caused the injury.

Although this question most frequently arises in death cases, there have been Florida decisions discussing its application to injuries not resulting in death. One of the most recent of these concerned a plaintiff suffering from a pre-existing eye disease. It was alleged by him that the negligent conduct of the physician deprived him of an opportunity of saving that eye. He was unable, however, to prove that, prior to the negligence, there was a greater than even chance that the eye could have been saved. As a result, his case failed.

An interesting case which illustrates the perspective of those states that oppose Florida's point of view was decided in Maryland. There, a patient had a chest x-ray taken which was suspicious for cancer. Unfortunately, it was misplaced and not included in her file. Seven months later a biopsy was performed which indicated the existence of a malignancy characterized as an infiltrating carcinoma. Although the plaintiff's estate was unable to demonstrate that she would probably have survived had the diagnosis been made quicker, they nonetheless attempted to recover for the "lost chance of survival." In considering the matter, the court held that the estate could recover if they could prove that, they had been deprived of a substantial possibility of survival. Although they did not attempt to define what percentage of lost chance would constitute a substantial possibility, it was clear that it would not require that the plaintiff prove that she would have lived but for the negligence.

Although there are continued attempts by counsel to erode the test which has been established in Florida, it does seem to be firmly in place. We are fortunate in this regard in that the test utilized in our jurisdiction does guard against recovery for speculative damages.