Foran Glennon Palandech Ponzi & Rudloff

April 2014

To Fear or Not to Fear: The Dangers of the Lost Chance Doctrine

Kelly A. Hejlik

 

Everybody’s afraid of something.

– The Shawshank Redemption, 1994

 

As we were told by The Shawshank Redemption, everybody is afraid of something.  If you’re a medical malpractice defense attorney, the “lost chance doctrine” may very well be among your fears.  If it’s not, it should be.

Background.  Recognized in Illinois, the lost chance doctrine is a theory of recovery that was enunciated by the Illinois Supreme Court in Holton v. Memorial Hospital, 176 Ill.2d 95 (1997).  The lost chance doctrine in a medical malpractice action refers to the injury sustained when the negligence of a medical provider: (1) deprives the plaintiff of a chance to survive or to recover from a health problem, (2) lessens the effectiveness of treatment, or (3) increases the risk of an unfavorable outcome.  The doctrine is not a separate theory of recovery but rather a concept that enters into the determination of proximate cause whenever a plaintiff alleges that a defendant’s negligent delay in diagnosis or treatment decreased the chance of recovery or survival; lessened the effectiveness of treatment; or increased the risk of an unfavorable outcome.  Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967 (1st Dist. 1997); see also Sinclair v . Berlin, 325 Ill. App. 3d 458 (1st Dist. 2001).  This claim need not be raised by the pleadings.  Instead, the defense is first put on notice of this theory during expert discovery.

What makes this theory so dangerous is the very low burden the Plaintiff must meet to establish the claim.  Under the lost chance doctrine, the plaintiff is not required to establish that she had greater than a 50 percent chance of survival or recovery absent the alleged negligence.  Meck v. Parameic Services of Illinois, 296 Ill. App 3d 720 (1st Dist. 1998).  In Holton, the Court did not shy away from declaring the barely-there standard the plaintiff must meet when furthering this theory.  The Supreme Court wholly rejected the notion that the plaintiff must prove a 50 percent chance of recovery.  In so doing, the Court emphasized that the plaintiff has a right to present evidence of a reduced chance of recovery due to malpractice.  Thus, as a result, to recover under the lost chance doctrine the plaintiff must merely establish that: (1) there was medical treatment available to treat the plaintiff’s illness or injury, and (2) that the negligent delay lessened the effectiveness of treatment.  Stated alternatively, negligent delay or treatment which lessens the effectiveness of treatment is sufficient to prove proximate cause in Illinois when lost chance is the theory furthered.  This is true even if the plaintiff has a less than 50 percent chance of survival or recovery.

Discussion.  This issue was just reconsidered by the Appellate Court in the case of Hemminger v. LeMay, 2014 IL App (3d) 120392.  The Court reconfirmed that “…the plaintiff is not required to show a better result. . . . All the plaintiff need show is a lost chance.”  That is so even if the general statistics regarding likely outcomes presented by the plaintiff have not been tailored to reflect the specific problems and genetics of the decedent.

The plaintiff, Daniel Heminger, sued Dr. Jeffrey LeMay and Sterling Rock Falls Clinic, Ltd., seeking damages for the death of his wife, Tina.  Heminger alleged that the defendants’ negligent failure to diagnose Tina’s cervical cancer in a timely fashion proximately caused her death by lessening her chance of survival.  Dr. Margaret Pfister, a board certified obstetrician and gynecologist, was Heminger’s sole expert witness at trial.  Dr. Pfister opined that Dr. LeMay’s negligent failure to diagnose Tina’s cervical cancer on June 23, 2000, caused Tina’s chances for survival to decrease.  Although Dr. Pfister could not say with certainty what stage Tina’s cervical cancer had reached by June 2000, when Dr. LeMay examined Tina on June 23, her cancer was either at Stage 1 or at Stage 2B.  Based on the Federation of International Gynecologic Oncologists (FIGO) staging system for cervical cancer, the American Cancer Society Survival Statistics, and her education, training and experience, Dr. Pfister opined that Dr. LeMay’s negligent failure to diagnose Tina’s cervical cancer on June 23, 2000, caused Tina’s chances for survival to decrease from between 58-63 percent (assuming the cancer was at Stage 2 at that time) to 32 percent.

Defendants moved for a directed verdict.  The trial court granted defendants’ motion, finding that arguing Heminger failed to present evidence sufficient to establish that Dr. LeMay’s negligence proximately caused Tina’s death under a lost chance of survival theory.  Defendants argued that Heminger’s causation evidence was speculative and inadequate because Dr. Pfister was unable to opine that the outcome in Tina’s specific case would have been different with earlier treatment.  Defendants also argued that Dr. Pfister failed to connect the survival rate statistics to Tina’s particular case, thereby leaving a fatal gap in Heminger’s causation evidence.  Furthermore, Defendants pointed to several concessions made by Dr. Pfister.  For example, Dr. Pfister acknowledged that certain factors particular to an individual’s cancer (such as the cancer’s histological characteristics, its degree of differentiation, its responsiveness to treatment, and whether the cancer is exophytic (growing outward from the cervix) or endophytic (growing inward within the cervix)) may impact that individual’s survival rate, but she conceded that she lacked the expertise to testify about the effect of any of these factors in Tina’s case.  Moreover, Dr. Pfister conceded that cancer grows at different rates in different people, and that there is no way to tell how fast it will grow in any particular patient.  Such concessions, defendants argued, entitled them to a directed verdict on the issue of causation.

Although the trial court agreed with the defendants, the Appellate Court did not.  The Appellate Court reversed and remanded, finding that Heminger presented enough evidence to create a triable issue of fact on the issue of proximate cause.  The Appellate Court reconfirmed the low threshold the plaintiff must meet under a lost chance theory.  The Court did so by stating that Dr. Pfister’s testimony pointed to specific treatment procedures (i.e., radiation and chemotherapy) that were delayed by Dr. LeMay’s negligent failure to diagnose Tina’s cancer in June 2000, thereby increasing the risk of death and decreasing Tina’s chance of survival.  The Appellate Court found that to be sufficient evidence to establish a prima facie case of causation under Holton and to withstand a motion for directed verdict.  The Court further stated that although the concessions made by Dr. Pfister might affect the weight that the jury might choose to assign to her causation opinion, they do not render Dr. Pfister’s opinion insufficient to establish proximate cause as a matter of law.  Accordingly, the Court held that the jury should have been allowed to consider and weigh all of the evidence, including Dr Pfister’s opinion.

Conclusion.  As evidenced by Heminger, the lost chance doctrine is alive and dangerous.  However, a strong cross-examination that takes something which was once general and makes it into something that is now specific can effectively address the theory and minimize its impact.  In so doing, the point that defense counsel should be driving home to the jury is that the plaintiff’s lost chance theory is purely speculative while also decreasing the credibility of the expert.  Notwithstanding the outcome, Heminger provides examples of an effective cross-examination inasmuch as the Heminger defendants effectively made very general testimony much more specific.

Moving forward with a cross-examination of this sort is a win-win for defense counsel in that it negatively impacts the expert’s credibility and renders the expert’s opinions speculative, at best.  When equipped with a plan such as this, defense counsel is well-equipped to deal with this theory.