Recent appellate division decisions have made it abundantly clear that the medical malpractice doctrine of lost chance of a better outcome is an accepted basis for recovery of substantial damages. In cases involving delayed diagnosis or omission failures qualified expert testimony based on the evidence addressing each of the various departures as a proximate cause of or substantial factor in causing the lost chance or increased injury is part and parcel of plaintiff’s prima facie case. Examining the case law on this doctrine will help counsel craft the requisite medical expert opinion questions and present appropriate jury charges as well as prepare for jury voir dire.
Recently, the Second Department upheld a multimillion-dollar verdict based upon delayed diagnosis of ovarian cancer. Bacchus-Sirju v. Hollis Women’s Ctr., 196 A.D.3d 670 (2nd Dept. 2021).The court upheld the jury’s verdict finding plaintiff’s expert’s testimony sufficient and supported by the evidence that the alleged departures in failing to inform the decedent that her sonogram showed fluid in the cul de sac, failure to obtain a blood CEA and refer to a gynecologic oncologist more likely than not were a substantial factor in causing a delayed diagnosis of ovarian cancer and diminishing her chances for a better outcome. Specifically, in discussing proximate cause, the court held:
"In order to establish proximate causation, a plaintiff must 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 the plaintiff's injury (see Berger v Shen, 185 AD3d at 541; Gaspard v Aronoff, 153 AD3d at 796). A plaintiff's evidence of proximate causation "may be found legally sufficient . . . 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”
Compare to Berger v. Shen, 185 A.D.3d 539 (2nd Dept. 2020) in which the Second Department found the expert’s trial testimony to be completely deficient and speculative on proximate
cause and granted defendant judgement notwithstanding the jury’s verdict of over $1 million dollars. Although the jury correctly found the defendant departed from accepted practice in failing to advise plaintiff of the nasal patch placed during endoscopic sinus surgery and failure to provide proper postoperative care the evidence showed the that the nasal injuries were caused during the surgery. Therefore, the departures were not proven to be a substantial factor in causing the injuries. However, the court in addressing causation held:
"Establishing proximate cause in medical malpractice cases requires a 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 the plaintiff's injury" (Gaspard v Aronoff, 153 AD3d 795, 796, 61 N.Y.S.3d 240). " 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'" (Lopes v Lenox Hill Hosp., 172 AD3d 699, 702, 99 N.Y.S.3d 384, quoting Gaspard v Aronoff, 153 AD3d at 796 )”
In reversing summary judgement for the defendant internist, the Second Department in Wiater v. Lewis, 197 A.D. 3d 782 (2nd Dept. 2021) found plaintiff’s expert’s submissions sufficient stating:
"Moreover, there are triable issues of fact as to whether Riegelhaupt assumed a duty to assist in the treatment of the injured plaintiff's gastrointestinal issue, and whether Riegelhaupt's alleged departures delayed the diagnosis of the injured plaintiff's ulcerative colitis and decreased his chances of having a better outcome. Whether a diagnostic delay affected a patient's prognosis is typically an issue that should be presented to a jury (see Neyman v Doshi Diagnostic 197 A.D.3d 782, *783”)
In reversing judgement for the defendant and granting a new trial the Second Department in Walsh v. Akhund, 198 A.D. 3d 1010 (2nd Dept. 2021) held it was error to exclude evidence that decedent’s sister tested positive for the BRCA gene after decedent’s death as such evidence according to plaintiff’s expert was probative that had decedent been properly advised by defendant to undergo the test it would more likely that not been positive enabling decedent to
undergo removal of her ovaries diminishing her chances of developing ovarian cancer. In discussing proximate cause in this context, the court holds:
"Establishing proximate cause in medical malpractice cases requires a 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 the plaintiff's injury" (Gaspard v Aronoff, 153 AD3d 795, 796, 61 N.Y.S.3d 240). "'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'" (Lopes v Lenox Hill Hosp., 172 AD3d 699, 702, 99 N.Y.S.3d 384, quoting Gaspard v Aronoff, 153 AD3d at 796-797 "
The Fourth Department has recently reaffirmed the viability of the lost chance doctrine in failure to diagnose cases. See Simko v. Rochester Gen. Hosp., 2021 NY Slip Op 06470 (4th Dept. 2021). However, the majority opinion affirmed summary judgement for defendant on the basis that Plaintiff’s expert neurologist’s opinion was insufficient to prove proximate cause finding the expert’s general opinion that the earlier the diagnosis of Guillain – Barre’ Syndrome and treatment with intravenous immunoglobulin treatment the better the outcome to be conclusory and speculative. The majority explains as follows:
"Like the dissent, we acknowledge that plaintiffs' theory of causation is predicated on the allegation that defendants' failure or delay in diagnosing plaintiff's GBS "diminished [her] chance of a better outcome" (Clune v Moore, 142 AD3d 1330, 1331, 38 N.Y.S.3d 852 [4th Dept 2016]). Nothing in our decision herein calls into question the viability of such a theory. The Court of Appeals, however, has instructed that when an expert "states his [or her] conclusion unencumbered by any trace of facts or data, [the] testimony should be given no probative force whatsoever" (Romano v Stanley, 90 NY2d 444, 451, 684 N.E.2d 19, 661 N.Y.S.2d 589 [1997] [internal quotation marks omitted]; see Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533, 571 N.E.2d 645, 569 N.Y.S.2d 337 n 2 [1991])”
The dissent by J. Curran found this expert’s opinion on causation to be sufficient and
consistent with the expert’s opinion set forth in its holding in Clune v. Moore, 142 A.D. 3d 1330 (4th Dept. 2016) and would have denied summary judgement commenting:
"As acknowledged by the majority, this appeal implicates the "loss of chance" theory of proximate causation that applies in delayed-diagnosis medical malpractice actions where the allegations are predicated on an "omission" theory of negligence (Wild v Catholic Health Sys., 85 AD3d 1715, 1717, 927 N.Y.S.2d 250 [4th Dept 2011], affd 21 NY3d 951, 991 N.E.2d 704, 969 N.Y.S.2d 846 (2013). See Stradtman v. Cavaretta (appeal no. 2) 179 A. D.3rd 1468, 1471 [4th Dept 2020]; Clune v Moore, 142 AD3d 1330, 1331-1332, 38 N.Y.S.3d 852 [4th Dept 2016]; Wolf v Persaud, 130 AD3d 1523, 1525, 14 N.Y.S.3d 601 [4th Dept 2015]; Gregory v Cortland Mem. Hosp., 21 AD3d 1305, 1306, 802 N.Y.S.2d 579 [4th Dept 2005]; Cannizzo v Wijeyasekaran, 259 AD2d 960, 961, 689 N.Y.S.2d 315 [4th Dept 1999]; see generally 1B NY PJI3d 2:150 at 47, 82-86 [2021]).
In such cases, proximate cause is not analyzed under the ordinary "substantial factor" approach (PJI 2:70), but rather according to whether the alleged delay in diagnosis diminished the plaintiff's "chance of a better outcome or increased the injury" (Wolf, 130 AD3d at 1525). Although I have expressed concern "that a loss of chance concept reduces a plaintiff's burden of proof on the element of proximate cause" (Humboldt v Parmeter, 196 AD3d 1185, 1194, 151 N.Y.S.3d 788 [4th Dept 2021, Curran, J., dissenting]), the majority and I agree that this Court has nonetheless adopted that causation standard in this type of medical malpractice action "
Over a vigorous dissent by J. Curran the Fourth Department in Humbolt v. Parmeter, 196 A.D.3rd 1185 (4th Dept. 2021) reversed the lower court’s denial of summary judgment to defendant finding plaintiff’s expert affidavit deficient in proof of departures and proximate cause. In his dissent J. Curran found plaintiff’s expert’s opinion sufficient on proximate cause based on the well-established lost chance doctrine stating:
"In such cases, where a "plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby 'diminished [the patient's] chance of a better outcome' " (Clune, 142 AD3d at 1331; see Wolf, 130 AD3d at 1525). In those instances, a "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 the better outcome as a result of the defendant's deviation from the standard of care”
The Third Department has again recently applied the lost chance doctrine in Holland v. Cayuga Med. Ctr., 195 A.D.3rd 1292 (3rd Dept. 2021) affirming denial of summary judgement to defendant based on plaintiff’s expert neurologist’s affidavit setting forth departures in the administration of TPA to treat plaintiff’s stroke and as to causation stating:
"He further stated that because Holland was given an improper dose, she was deprived of a substantial possibility of a better outcome, up to and including a 100% recovery. Additionally, Lechtenberg specifically states that Holland "experienced a worsening of her stroke likely caused by progression of cerebral ischemia and clots evolving/propagating from her stroke condition," and that the "specified tPA treatment [could have] prevent[ed] the stroke worsening." After reviewing his affidavit, we find it neither speculative nor conclusory, and any scrutiny with respect to the source or basis for the expert's opinion, or the credibility of the affiant himself, is properly left to cross-examination at trial (citations omitted).
As pointed out in my prior articles discussing lost chance, despite its prevalence in omission cases involving delayed diagnosis and treatment, the proximate cause Pattern Jury Instruction PJI 2:70 does not include a lost chance charge for these types of medical malpractice cases. (See Lost Chance as a Substantial Factor of Injury., Part 1 and Part 2, NYLJ October 14th and 21st, 2020 and Proposed Jury Charges and Voir Dire in Lost Chance Cases, August 23, 2021). Thus, it is advisable that counsel submit proposed jury charges based on anticipated trial testimony, evidence and applicable law to the trial judge prior to the start of trial. The issues regarding delayed diagnosis and treatment causing the lost chance should be explored during voir dire to identify and excuse any prospective jurors who indicate a potential bias against proof of lost chance for a better outcome or increased injury.
The Court of Appeals in Wild v. Catholic Health Sys., 21 N.Y.3rd 951 (2013),
addressed a malpractice claim of delayed diagnosis of a perforated esophagus in an 83 yr. old woman requiring a feeding tube (she died 3 years later of unrelated causes). Although not squarely addressing lost chance, the issue not properly preserved by defendants during the trial , the court did not find improper the following jury charge included 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 in order 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.”
The Court notes that the trial court at the outset correctly instructed the jury as to
plaintiff’s burden of proof and used the exact language set forth in PJI 2:70 that "An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that that reasonable people would regard it as a cause of the injury ". The Court concludes that "taking this jury charge as a whole, we do not find support for defendants’ contention of an improper alteration of the causation standard or plaintiffs’ burden of proof” (Nestorowich v. Ricotta, 97 N.Y.2nd 393,401,740 N.Y.S.2nd 668, 767N.E.2nd 125).
In a more recent First Department case of delayed diagnosis of lung cancer allowing progression of the cancer to a more advanced stage, the experts, although not knowing the status of the cancer at the time of the alleged delay, could base their opinions on knowledge of the rate of progression of the particular type of cancer. Wager v. Rao, 178 A.D.3rd 434 (1st Dept. 2019). The court explaining that competing expert opinions on the rate of progression of the disease typically presents an issue of fact for the jury to resolve. Citing Polanco v. Reed, 105 A.D.3rd 438 (1st Dept. 2013).
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 disease is sufficient. Polanco, supra.
In lost chance medical malpractice cases the proximate cause question is part and parcel
of plaintiff’s prima facie case and must be carefully crafted based on the expert’s testimony. In general the expert testimony must establish that each departure is more likely than not a proximate cause of the injury or a substantial factor in causing the injury. The injury may be the diminished chance for a better outcome or increased pain and suffering and additional treatment for the injury. The inclusion of the word substantial in the causation question must not confuse the jury to believe that the lost chance itself must be greater than 50%. There may be more than one proximate cause of an injury. The case law is clear that the expert testimony need not quantify the percentage of the lost chance so long as there is credible evidence for the jury to determine that the plaintiff lost a chance for a better outcome. However, the lost chance to be compensable cannot be sight or trivial. Whether a delayed diagnosis caused a diminished chance or affected the plaintiff’s prognosis or recovery is generally a jury question.
The expert testimony must detail the basis for the lost chance based on facts and data in evidence and not solely rest on the premise that the earlier the diagnosis the better the outcome. Case law makes clear such opinion testimony alone unsupported by an evidentiary basis may be considered by the court to be speculative and conclusory in nature and insufficient to make out plaintiff’s prima facie case.
The verdict sheet will include the proximate cause question following each alleged
departure question. So, the question will typically read was the alleged departure a substantial factor or a proximate cause of plaintiff’s injury. The exact wording depends on support from the expert’s testimony. Thus, the wording of the proximate cause question posited to the expert may be "Was this departure more likely than not a substantial factor in causing plaintiff a delayed diagnosis and diminished chance for a better outcome? ". Additionally, "Was this departure more likely than not a substantial factor in causing plaintiff additional pain and suffering and further treatment?” Cases have also sanctioned use of the phrase "substantial possibility "in the context of "Did the departure more likely than not deprive the plaintiff of a substantial chance or possibility of a better outcome or avoiding the injury.” The concepts of "substantial factor in bringing about an injury "and "substantial possibility of avoiding the injury are virtually indistinguishable”. see Mortenson v. Memorial Hospital, 106 A.D.2nd 438 (1st Dept. 1984). In any case the charge should be clear that the lost chance of better outcome or of avoiding the injury does not have to be greater than 50% so long as it is not slight or trivial.
CONCLUSION
Medical malpractice cases based on omission such as delayed diagnosis or chance of avoiding the injury are appropriate for application of the lost chance doctrine. The appellate division decisions are all in agreement that the lost chance doctrine is a basis for recovery of substantial damages. As the PJI does not provide a lost chance charge counsel must carefully prepare expert testimony to address this subject in detail based on credible evidence and craft proposed jury charges supported by the applicable case law in the department. Equally important, counsel must voir dire the jury on this subject so as to identify and excuse jurors who express bias against this type of evidence.
Alan W. Clark, a Trial attorney, is Of Counsel to the law firm of Duffy & Duffy, Uniondale, New York and Managing Partner of The Law Firm of Alan W. Clark and
Associates, L.L.C, Huntington Station, New York.; Mr. Clark is Board Certified and Recertified in Professional Medical Liability by the ABPLA; member of AAJ; NYSTLA; NYSBA; NSTLA; NYSATL; ABPLA; and NCBA.