Cooper v. Hartman

ADKINS, Judge. In Weimer v. Hetrick, 309 Md. 536 , 525 A.2d 643 (1987), we held that the “loss of a substantial chance of survival” ²⁶¹ doctrine did not apply to a wrongful death action under Md.Code (1984 Repl.Vol., 1987 Cum.Supp.) Cts. & Jud.Proc. Art. § 3-904. We explained that neither Thomas v. Corso, 265 Md. 84 , 288 A.2d 379 (1972), nor Hicks v. United States, 368 F.2d 626 (4th Cir.1966), “created ... a new tort ... [or] an additional basis for determination of damages in an existing tort” on the basis of that doctrine.

Weimer, 309 Md. at 553 , 525 A.2d at 652 . We left for “another day” the question of whether Judge Sobeloff s language in Hicks ( 368 F.2d at 632 ) “will prove to be an augury of a burgeoning new tort or introduce a new factor for consideration of damages in tort cases producing injury or death____” Id. That day has not yet come. The case now before us, tried long before our Weimer , went to the jury on instructions that included one based on the “loss of a chance” doctrine.

But because the evidence was insufficient to support that instruction, even assuming the doctrine exists in Maryland, we again decline to decide whether Maryland recognizes the doctrine. We explain. On 18 February 1978 respondent Stanley Hartman fell and fractured his right hip. Petitioner Dr. Neill Cooper operated on the hip in an effort to repair the damage.

The surgery appeared to be successful; Hartman was discharged from the hospital on 16 March, still under the care of Dr. Cooper. A short time after his discharge, Hartman began showing symptoms of infection in his right hip. On 28 March 1978, during an outpatient consultation with Dr. Cooper, Hartman complained of persistent pain and swelling in his right leg. Dr. Cooper, apparently suspecting infection, prescribed an antibiotic.

The antibiotic had little or no effect on Hartman’s pain and swelling, and his condition continued to deteriorate. On 26 April 1978 Hartman again consulted Dr. Cooper, this time complaining of throbbing pain in his right thigh and recurrent episodes of fever. Despite these symptoms Dr. Cooper did not take any serious steps to determine the ²⁶² cause of the swelling until 26 May 1978 when he administered a blood test. The test revealed a slightly elevated white blood count and an increased sedimentation rate, two indicators of infection.

Despite these warning signals the doctor took no further action to diagnose or treat the infection until 27 June 1978 when he aspirated the wound and obtained bacterial cultures for testing. Tests of the cultures, however, showed no sign of bacterial infection. Over the next few months, Hartman’s symptoms continued but Dr. Cooper failed to abate the infection. Finally in November 1978, Hartman was admitted to Johns Hopkins Hospital where he was diagnosed as suffering from osteomyelitis (an infection of the bone) in his right leg.

During the course of treatment, Hartman underwent five successive surgeries involving removal of bone from his right leg. The end result was a two-inch shortening of the leg. Hartman and his wife (the Hartmans) filed a medical malpractice claim against Dr. Cooper and other health care providers (hereinafter collectively referred to as Dr. Cooper). Dr. Cooper was victorious in the arbitration proceeding, as he was in a subsequent trial in the Circuit Court for Anne Arundel County.

The judgment in his favor, however, was reversed. Hartman v. Cooper, 59 Md.App. 154 , 474 A.2d 959 (1984). At a new trial the Hartmans obtained a $210,000 judgment against Dr. Cooper. The Court of Special Appeals affirmed in Cooper v. Hartman, No. 1615, September Term, 1985 (Md.App., filed 6 October 1986) (per curiam).

We granted certiorari. We did so because at the second trial the Hartmans asserted that Dr. Cooper’s post-surgery negligence—that is negligence in treating the infection—had caused Hartman to lose a substantial chance of attaining a better recovery than in fact occurred. On the basis of that theory and over ²⁶³ Dr. Cooper’s objections, 1 the Circuit Court for Anne Arundel County (Goudy, J.) instructed that: In a civil case such as this people are presumed to have acted reasonably and that’s why the burden of proof is by a preponderance of the evidence on the party asserting the claim to prove they didn’t. That’s a general statement of law in any negligence case.

And with regard to causation Judge Goudy gave the following charge: You are instructed that when a physician’s negligent act, and I’m not suggesting it was negligent, or that it was or wasn’t—when a physician’s negligent act or negligent failure to act has terminated or lessen[ed] a person’s chance of recovery the physician will not be heard to raise conjectures as to the measures of the chances that he has taken away. If there was any substantial possibility in this case of recovery or stopping or arresting the infection and the doctor negligently destroyed that chance, it is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened had the treatment not been negligent. The latter instruction, in effect, required the jury to apply the doctrine of “loss of substantial chance of survival,” or ²⁶⁴ more properly, on the facts of this case, “loss of a substantial chance of recovery.” The instruction was based upon Judge Sobeloff’s language in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966), which we quoted in Thomas v. Corso, 265 Md. 84, 101-102 , 288 A.2d 379, 389-390 (1972).

Apparently misreading Thomas , the trial court erroneously concluded that we had adopted the loss of substantial chance doctrine in Maryland. 2 The Court of Special Appeals, citing Thomas , found “no error in the trial court’s interpretation or application of the ‘substantial possibility’ standard____” Cooper v. Hartman, No. 1615, September Term, 1985, slip op. at 3-4 (Md.App. filed 6 October 1986) (per curiam). For the reasons we now give, both courts were in error. The doctrine of “loss of substantial chance of survival,” as it is often called, has received a great deal of attention recently from commentators. 3 This rule has been applied primarily in medical malpractice cases where the patient, already plagued by a pre-existing illness, injury or condition, receives medical treatment that falls below the standard of care. Ann.otation, Medical Malpractice: “Loss of Chance” Causality, 54 A.L.R.4th 10 , 17-18 (1987).

In ²⁶⁵ these cases under traditional rules, plaintiffs often encounter problems with proof of causation and are unable to demonstrate a better than even chance of recovery, absent the malpractice. King, “Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences,” 90 Yale L.J. 1353 , 1363-1364 (1981). And under traditional approaches any injury suffered by the patient “would not be compensable because it did not appear more likely than not that the patient would have survived with proper care.” Id. As a direct consequence of the results occasioned by the traditional approach, some courts have adopted rules designed to alleviate what they view as inequity.

The various courts that have adopted these rules, however, have taken different approaches. Some have simply relaxed the standards regarding causation and allowed full compensation for an injury or death where the plaintiff demonstrated less than a 50% chance of recovery. 4 Others have left the traditional rules of causation intact but have viewed the loss of a chance as a way of approaching damages. 5 See Weimer v. Hetrick, 309 Md. 536, 556 , 525 A.2d 643, 653 (1987) (McAuliffe, J., concurring) (“a claim under that theory [loss of substantial chance of survival] does not involve the creation of a new tort, but rather involves a redefinition of damages involved in the claim”). Professor King in his recent law review article provides a succinct discussion of the damage approach: ²⁶⁶ A better method of valuation would measure a compensable chance as the percentage probability by which the defendant’s tortious conduct diminished the likelihood of achieving some more favorable outcome. Under this approach, the trier of fact would continue to make the valuation, but would do so within specific guidelines and parameters set by the court.

To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient’s condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent’s death, he caused the loss of a chance, and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff’s compensation for the loss of the victim’s chance of surviving the heart attack would be 40% of the compensable value of the victim’s life had he survived (including what his earning capacity would otherwise have been in the years following death).

The value placed on the patient’s life would reflect such factors as his age, health, and earning potential, including the fact that he had suffered the heart attack and the assumption that he had survived it. The 40% computation would be applied to the base figure. King, supra, at 1382. Thus, under Professor King’s approach, an injured patient can only recover damages for the lost chance.

Respondents argue that the “loss of substantial chance doctrine” exists in Maryland and should be applied here, either as a new cause of action (the causation approach) or, alternatively, as a method of determining damages for a traditional tort (the damage approach). As we have already observed, we need not and do not decide whether Maryland recognizes the doctrine in any form. That is so because even if we assume, arguendo, the existence of the doctrine, ²⁶⁷ the evidence in this case does not support its application under either approach. The sufficiency of evidence necessary to establish the element of causation under the causation approach is best illustrated with reference to Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597 , 688 P.2d 605 (1984).

In Thompson the court said that even if the evidence permits only a finding that the defendant’s negligence increased the risk of harm or deprived plaintiff of some significant chance of survival or better recovery, it is left for the jury to decide whether there is a probability that defendant’s negligence was a cause in fact of the injury. Thompson, 141 Ariz. at 606 , 688 P.2d at 614 . The Thompson court acknowledged that it, in effect, “permit[ted] the case to go to the jury on the issue of causation with less definite evidence of probability than the ordinary tort case.” Id. at 607 , 688 P.2d at 615 . But the court reiterated that the jury was to be “instructed that they must find for the defendant unless they find a probability that the defendant’s negligence was a cause of plaintiff’s injury.” Id. at 607-608 , 688 P.2d at 615-616 [emphasis in original]. 6 At trial Hartman presented testimony of two expert witnesses, Dr. Caplan and Dr. Weiland.

Both testified that Dr. Cooper departed from the standard of care by failing to diagnose and treat the infection more promptly. As to causation, the testimony was somewhat less conclusive. Dr. Weiland testified as follows: Q. Do you have an opinion, doctor, as to—to a reasonable medical probability as to whether or not there is a