§13.5 Loss of Chance

The Case: Kilpatrick v. Bryant , 868 S.W.2d 594 (Tenn. 1993) (Reid, C.J., concurring) (Daughtrey, J. concurring in part and dissenting in part) (Anderson, J. concurring and dissenting).

The Basic Facts: This is a medical malpractice case in which the Tennessee Supreme Court addressed whether a cause of action for "loss of chance" is cognizable in Tennessee.

The Bottom Line:

• "As stated earlier, the Plaintiffs in the present case have established that there is a 'likelihood' that the delay in proper diagnosis and treatment caused 'irreparable damage.' The term 'likelihood' can arguably be equated with a 'probability.'See Webster's Third New International Dictionary, Unabridged (Merriam Co. 1971); Black's Law Dictionary (6th ed.) (West 1990); contra White v. Methodist Hosp. South, supra (medical malpractice case equating likelihood with a possibility and therefore insufficient). Nonetheless, we are persuaded that the loss of chance theory of recovery is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician. As stated earlier, a plaintiff in Tennessee must prove that the physician's act or omission more likely than not was the cause in fact of the harm. Lindsey, 689 S.W.2d at 861. This requirement necessarily implies that the plaintiff must have had a better than even chance of surviving or recovering from the underlying condition absent the physician's negligence. T.C.A. § 29-26-115(a)(3) plainly requires that the plaintiff suffer injury 'which would not otherwise have occurred.' This statutory language is simply another way of expressing the requirement that the injury would not have occurred but for the defendant's negligence, our traditional test for cause in fact. Although a plaintiff can recover for harm stemming from the aggravation of an existing illness, the plaintiff may not recover damages for the loss of a less than even chance of obtaining a more favorable medical result. The traditional test for cause in fact prevents recovery because the patient's condition would more likely than not be the same even if the defendant had not been negligent." 868 S.W.2d at 602-03.

• "Accordingly, we hold that a plaintiff who probably, i.e., more likely than not, would have suffered the same harm had proper medical treatment been rendered, is entitled to no recovery for the increase in the risk of harm or the loss of a chance of obtaining a more favorable medical result. Chief Justice Riley of the Michigan Supreme Court, in her dissent in Falcon, supra, reflects our sentiments in this regard:

  The 'lost chance of survival' theory urged by plaintiff represents not only a redefinition of the threshold of proof for causation, but a fundamental redefinition of the meaning of causation in tort law.
  
  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 fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably rather than possibly caused the injury. We cannot approve the substitution of such an obvious inequity for a perceived one.
  
  The lost chance of survival theory does more than merely lower the threshold of proof of causation; it fundamentally alters the meaning of causation.
  
  The most fundamental premise upon which liability for a negligent act may be based is cause in fact. (Citation omitted.) An act or omission is not regarded as a cause of an event if the particular event would have occurred without it. (Citation omitted.) If the defendant's acts did not actually cause the plaintiff's injury, then there is no rational justification for requiring the defendant to bear the cost of the plaintiff's damages.
  
  I believe it is unwise to impose liability on members of the medical profession in such difficult circumstances as those now before this Court. Rather than deterring undesirable conduct, the rule imposed only penalizes the medical profession for inevitable unfavorable results. The lost chance of survival theory presumes to know the unknowable.

  Falcon, 462 N.W.2d at 61, 64-68. This is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with." Id. at 603.
• "The dissent argues that Truan v. Smith, 578 S.W.2d 73 (Tenn. 1979), an opinion which has been described as 'ambiguous,' see Boburka v. Adcock, 979 F.2d 424 (6th Cir.1992), lends support for the adoption of loss of chance. It is true that in Truan the delay in proper diagnosis of the patient's cancer increased the chances of or accelerated the patient's death. Id. at 76. The Court, speaking through Justice Cooper, held that the evidence was sufficient to support a finding of negligence. Id. at 76-77. As conceded by the dissent, however, the dispositive issue in Truan was the physician's negligence, not whether Tennessee should recognize a new cause of action for loss of chance. Thus, this Court was not called upon in Truan to examine and analyze the implications of adopting loss of chance. This Court did not cite, much less discuss, any cases or other authority even remotely related to loss of chance." Id.
• "We decline to relax traditional cause in fact requirements and recognize a new cause of action for loss of chance. Accordingly, the Plaintiffs in this case are not entitled to recover damages for the impaired opportunity for obtaining a more favorable medical result, the increase in the risk of harm, or the loss of a better chance of recovery or survival. Plaintiffs also seek damages for additional medical treatment, pain and suffering, loss of earning capacity, etc., directly attributable to the negligence of the Defendant. We conclude that these items of damages are recoverable because the Plaintiffs have shown that such damages would not have been incurred but for the Defendant's negligence. Thus, the grant of summary judgment to the Defendant is sustained to the extent that it relates to the loss of chance or the increase in the risk of harm. Summary judgment as to the Plaintiffs' claims for the other items of damages noted above is reversed. Costs are to be split evenly between the parties." Id. at 603-04.

Recent Cases: Valadez v. Newstart , LLC, No. W2007-01550-COA-R3-CV, 2008 WL 4831306 (Tenn. Ct. App. Nov. 7, 2008) (affirming summary judgment to defendants and declining to adopt loss of chance theory finding Tennessee Supreme Court has expressly stated that Tennessee does not recognize such a cause of action).