Herskovits v. Group Health Cooperative

664 P.2d 474, 99 Wash. 2d 609, 1983 Wash. LEXIS 1564
CourtWashington Supreme Court
DecidedMay 26, 1983
Docket48034-6
StatusPublished
Cited by185 cases

This text of 664 P.2d 474 (Herskovits v. Group Health Cooperative) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herskovits v. Group Health Cooperative, 664 P.2d 474, 99 Wash. 2d 609, 1983 Wash. LEXIS 1564 (Wash. 1983).

Opinions

Dore, J.

This appeal raises the issue of whether an estate can maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy.

Both counsel advised that for the purpose of this appeal we are to assume that the respondent Group Health Cooperative of Puget Sound and its personnel negligently failed to diagnose Herskovits' cancer on his first visit to the hospital and proximately caused a 14 percent reduction in his chances of survival. It is undisputed that Herskovits had [611]*611less than a 50 percent chance of survival at all times herein.

The main issue we will address in this opinion is whether a patient, with less than a 50 percent chance of survival, has a cause of action against the hospital and its employees if they: are negligent in diagnosing a lung cancer which reduces his chances of survival by 14 percent.

The personal representative of Leslie Herskovits' estate initiated this survivorship action against Group Health Cooperative of Puget Sound (Group Health), alleging failure to make an early diagnosis of her husband's lung cancer. Group Health moved for summary judgment for dismissal on the basis that Herskovits probably would have died from lung cancer even if the diagnosis had been made earlier, which the trial court granted.

I

The complaint alleged that Herskovits came to Group Health Hospital in 1974 with complaints of pain and coughing. In early 1974, chest X-rays revealed infiltrate in the left lung. Rales and coughing were present. In mid-1974, there were chest pains and coughing, which became persistent and chronic by fall of 1974. A December 5, 1974, entry in the medical records confirms the cough problem. Plaintiff contends that Herskovits was treated thereafter only with cough medicine. No further effort or inquiry was made by Group Health concerning his symptoms, other than an occasional chest X-ray. In the early spring of 1975, Mr. and Mrs. Herskovits went south in the hope that the warm weather would help. Upon his return to the Seattle area with no improvement in his health, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion. Within 3 weeks, Dr. Ostrow's evaluation and direction to Group Health led to the diagnosis of cancer. In July of 1975, Herskovits' lung was removed, but no radiation or chemotherapy treatments were instituted. Hersko-vits died 20 months later, on March 22, 1977, at the age of 60.

At hearing on the motion for summary judgment, plain[612]*612tiff was unable to produce expert testimony that the delay in diagnosis "probably" or "more likely than not" caused her husband's death. The affidavit and deposition of plaintiff's expert witness, Dr. Jonathan Ostrow, construed in the most favorable light possible to plaintiff, indicated that had the diagnosis of lung cancer been made in December 1974, the patient's possibility of 5-year survival was 39 percent. At the time of initial diagnosis of cancer 6 months later, the possibility of a 5-year survival was reduced to 25 percent. Dr. Ostrow testified he felt a diagnosis perhaps could have been made as early as December 1974, or January 1975, about 6 months before the surgery to remove Mr. Hersko-vits' lung in June 1975.

Dr. Ostrow testified that if the tumor was a "stage 1" tumor in December 1974, Herskovits' chance of a 5-year survival would have been 39 percent. In June 1975, his chances of survival were 25 percent assuming the tumor had progressed to "stage 2". Thus, the delay in diagnosis may have reduced the chance of a 5-year survival by 14 percent.

Dr. William Spence, one of the physicians from Group Health Hospital who cared for the deceased Herskovits, testified that in his opinion, based upon a reasonable medical probability, earlier diagnosis of the lung cancer that afflicted Herskovits would not have prevented his death, nor would it have lengthened his life. He testified that nothing the doctors at Group Health could have done would have prevented Herskovits' death, as death within several years is a virtual certainty with this type of lung cancer regardless of how early the diagnosis is made.

Plaintiff contends that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury. Defendant Group Health argues conversely that Washington law does not permit such testimony on the issue of medical causation and requires that medical testimony must be at least sufficiently definite to establish that the act complained of "probably" or "more likely than not" [613]*613caused the subsequent disability. It is Group Health's contention that plaintiff must prove that Herskovits "probably" would have survived had the defendant not been allegedly negligent; that is, the plaintiff must prove there was at least a 51 percent chance of survival.

Pursuant to CR 56(c), summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. All reasonable inferences from the evidence must be resolved against the moving party, and in favor of the non-moving party. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979).

II

This court has held that a person who negligently renders aid and consequently increases the risk of harm to those he is trying to assist is liable for any physical damages he causes. Brown v. MacPherson's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). In Brown, the court cited Restatement (Second) of Torts § 323 (1965), which reads:

One who undertakes ... to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable to his if
(a) his failure to exercise such care increases the risk of such harm,. . .

This court heretofore has not faced the issue of whether, under section 323(a), proof that the defendant's conduct increased the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury. Some courts in other jurisdictions have allowed the proximate cause issue to go to the jury on this type of proof. See McBride v. United States, 462 F.2d 72 (9th Cir. 1972); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Kallenberg v. Beth Israel Hasp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (1974); Jeanes v. Milner, 428 F.2d 598 (8th Cir. 1970); Hicks v. United States, 368 F.2d 626 (4th Cir. 1966).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cohan v. Medical Imaging Consultants
297 Neb. 111 (Nebraska Supreme Court, 2017)
Dunnington v. Virginia Mason Medical Center
389 P.3d 498 (Washington Supreme Court, 2017)
Volk v. DeMeerleer
386 P.3d 254 (Washington Supreme Court, 2016)
Diane Christian, et ux v. Antoine Tohmeh, MD, et ux
366 P.3d 16 (Court of Appeals of Washington, 2015)
Volk v. DeMeerleer
337 P.3d 372 (Court of Appeals of Washington, 2014)
Rash v. Providence Health & Services
334 P.3d 1154 (Court of Appeals of Washington, 2014)
Estate of Dormaier v. Columbia Basin Anesthesia, PLLC
177 Wash. App. 828 (Court of Appeals of Washington, 2013)
Dickhoff ex rel. Dickhoff v. Green
836 N.W.2d 321 (Supreme Court of Minnesota, 2013)
Indiana Department of Insurance v. Everhart
960 N.E.2d 129 (Indiana Supreme Court, 2012)
Mohr v. Grantham
262 P.3d 490 (Washington Supreme Court, 2011)
Ritchie v. Krasner
211 P.3d 1272 (Court of Appeals of Arizona, 2009)
Thomas v. Univ. Hosps. of Cleveland, 90550 (12-11-2008)
2008 Ohio 6471 (Ohio Court of Appeals, 2008)
Matsuyama v. Birnbaum
452 Mass. 1 (Massachusetts Supreme Judicial Court, 2008)
Sharbono v. Universal Underwriters Ins. Co.
161 P.3d 406 (Court of Appeals of Washington, 2007)
Rasmussen v. Skagit County
448 F. Supp. 2d 1203 (W.D. Washington, 2006)
Minahan v. Western Washington Fair Ass'n
73 P.3d 1019 (Court of Appeals of Washington, 2003)
McMackin v. Johnson County Healthcare Center
2003 WY 91 (Wyoming Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
664 P.2d 474, 99 Wash. 2d 609, 1983 Wash. LEXIS 1564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herskovits-v-group-health-cooperative-wash-1983.