Jorgenson v. Vener

2000 SD 87, 616 N.W.2d 366, 2000 S.D. LEXIS 140

• Court: South Dakota Supreme Court
• Decided: July 5, 2000
• Docket: None
• Status: Published

Opinions

MILLER, Chief Justice

[¶ 1.] In this medical malpractice case we reverse the trial court and hold that the “loss of chance” doctrine is recognized at common law in this state.

FACTS

[¶ 2.] On August 16, 1997, while visiting at a relative’s home in Wisconsin, David Jorgenson jumped from a deck on the house to a cement sidewalk below, a distance of approximately seven feet. The impact shattered his lower right leg and ankle. He was taken to a nearby hospital, where a doctor inserted pins into the leg and ankle and stabilized the injury with a device called an external fixator. Jorgen-son was discharged from the Wisconsin hospital five days later.

[¶ 3.] Upon returning to his home in Waubay, South Dakota, Jorgenson continued treatment of his injury with Dr. Michael Vener of Watertown, a physician specializing in orthopedic surgery. Dr. Vener, after noticing some drainage around the pins in Jorgenson’s leg, placed him on a weeklong course of antibiotics. Approximately one month after the accident, Dr. Vener re-aligned the external fixator. At that time, an open sore of approximately 1 1/2” was noted on the lower shin of Jorgenson’s right leg.

[¶4.] In late October, Jorgenson began feeling feverish. He also noticed drainage and a foul-smelling odor coming from the blister on his leg. Dr. Vener prescribed another course of antibiotics for him.

[¶ 5.] On November 10, 1997, Dr. Vener removed the external fixator. Approximately two weeks later, Jorgenson again noticed drainage and a foul-smelling odor coming from the open sore. However, this time he could also see a bone at the surface of the wound. Jorgenson immediately contacted Dr. Vener, who prescribed another course of oral and topical antibiotics. In addition, an appointment with a doctor in Fargo was scheduled to assess whether a “free flap” procedure should be done, in the words of Dr. Vener, “in order to salvage the limb.”

[¶ 6.] Jorgenson never went to the doctor in Fargo. Instead, he made an appointment at the Mayo Clinic in Rochester, Minnesota, on December 4th. There Jor-genson was told he had two options concerning treatment of the leg: attempt a bone and skin graft, which would encompass two years of treatment with a 60% chance of success, or immediate amputation. Jorgenson chose the latter. On December 9, 1997, he underwent a below-the-knee amputation of his right leg.

[¶ 7.] Jorgenson and his wife subsequently filed this medical malpractice action, claiming Dr. Vener failed to diagnose a chronic infection in the bone and also failed to refer him to an infectious disease specialist. According to Jorgenson, Dr. Vener’s negligence caused a “loss of the chance” for him to save his leg.

[¶ 8.] After discovery had ensued, Dr. Vener filed a motion for summary judgment. The trial court granted the motion. Jorgenson appeals.

STANDARD OF REVIEW

[¶ 9.] Our review of a trial court’s granting of summary judgment is well settled.

“In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.”

Millard v. City of Sioux Falls, 1999 SD 18, ¶ 8, 589 N.W.2d 217, 218 (quoting Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 14, 581 N.W.2d 527, 531 (citations omitted)).

DECISION

[¶ 10.] The loss of chance doctrine is recognized in South Dakota.

[¶ 11.] After reviewing briefs and conducting a hearing, the trial court granted Vener’s motion for summary judgment, concluding that “the loss of chance doctrine is not compatible with South Dakota law.” Jorgenson asserts this decision was incorrect, contending South Dakota recognizes the loss of chance doctrine and that it encompasses the type of harm inflicted by Vener’s negligence. In contrast, Vener argues that the doctrine is not recognized in South Dakota, and that we should not lower our traditional causation standard by adopting it. Vener alternately asserts that even if the loss of chance doctrine is adopted in this state, Jorgenson did not present sufficient evidence to establish causation under the lower standard. We have not had the opportunity to determine whether the loss of chance doctrine is recognized at common law in this state.¹

[¶ 12.] The loss of chance doctrine involves the idea that a doctor, by doing something wrong, has decreased the patient’s chance of recovery or survival. Margaret T. Mangan, Comment, The Loss of Chance Doctrine: A Small Price to Pay for Human Life, 42 S.D.L.Rev. 279, 283 (1997).² Various arguments opposing and supporting the doctrine have been proffered by courts and commentators. See Keith, supra, at 770-80; Mangan, supra, at 292-98 (and sources cited therein). Opponents ³ generally contend that it alters or eliminates the requirement of proximate causation. Gooding v. University Hosp. Building, Inc., 445 So.2d 1015, 1019 (Fla. 1984); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, 65 (1990) (Riley, C.J., dissenting).⁴ They also assert that loss of chance relies on speculative statistical evidence in order to show how much chance was lost by the physician’s actions. Fennell v. Southern Maryland Hosp. Ctr., Inc., 320 Md. 776, 580 A.2d 206, 213-14 (1990). Further, they argue that it places medical malpractice liability on a separate standard compared to other professions. Gooding, 445 So.2d at 1019-1020. Finally, they contend that relaxation of the traditional causation standards will ultimately produce greater injustice in the form of increased medical malpractice litigation and higher malpractice insurance premiums, which will be passed on to patients. Fennell, 580 A.2d at 214-15; see also, Cooper v. Sisters of Charity of Cincinnati Inc., 27 Ohio St.2d 242, 272 N.E.2d 97, 103 (1971) (stating that such a rule would “produce more injustice than justice”).⁵

[¶ 13.] Proponents of the doctrine⁶ assert that it permits at least some form of recovery for the victim, rather than the all- or-nothing approach under the traditional standard of proof of causation. Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 408 (Tex.1993) (Hightower, J., dissenting); Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 664 P.2d 474, 486 (1983) (Pearson, J., concurring); see also Mangan, supra, at 292. A related argument is that it allows for allocation of losses attributable to a physician’s negligence. Kramer, 858 S.W.2d at 409 (Hightower, J., dissenting); Herskovits, 664 P.2d at 486-87 (Pearson, J., concurring); see also Mangan, supra, at 292-293; King, supra, at 1377. Proponents also contend that the costs of uncertainty (whether a patient would have recovered but for the physician’s negligence) should be imposed on the doctor rather than the patient. Kramer, 858 S.W.2d at 409 (Hightower, J., dissenting); Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Mangan, supra, at 293; King, supra, at 1378. Finally, they argue that any chance of recovery, no matter how small, is a legally cognizable interest (a patient’s health is valuable, even though the chance of recovery may be less than 50%). Kramer, 858 S.W.2d at 409 (Hightower, J., dissenting); Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Mangan, supra, at 293; King, supra, at 1378.

[¶ 14.] Loss of chance developed in response to the traditional standard of proof of causation. Mangan, supra, at 285. Normally, a plaintiff is required to show by a preponderance of the evidence that the defendant’s actions proximately caused the injuries suffered:

“The term ‘proximate cause’ contemplates an immediate cause which, in natural or probable sequence, produces the injury complained of. This excludes the idea of legal liability based on mere speculative possibilities or circumstances and conditions remotely connected to the events leading up to an injury.”

This Court further stated in Mulder that for proximate cause to exist, “the defendant’s conduct [must have] such an effect in producing the harm as to lead reasonable men to regard it as a cause” of the plaintiffs injury. 85 S.D. at 549, 186 N.W.2d at 887. Appellant has the burden of establishing that there is sufficient evidence for the factfinder “to reasonably conclude, without resort to speculation, that the preponderance favors liability. As such, [appellants are] not required to prove [their] case to a degree of absolute certainty.” Engberg v. Ford Motor Co., 87 S.D. 196, 202, 205 N.W.2d 104, 107 (1973).

Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981) (quoting Mulder v. Tague, 85 S.D. 544, 549, 186 N.W.2d 884, 887 (1971) (citations omitted)). Typically, unless the plaintiff can attribute more than a 50% probability of causation to the defendant’s negligence, he fails to meet his burden of proof. Thus, if a plaintiff can only show a 49% or less chance that the defendant’s actions caused his injury, he is foreclosed of all recovery. Conversely, if he can show a 51% or better chance that the defendant caused his injuries, he can recover 100% of the value of such injuries. Because of perceptions that the all-or-nothing approach of the traditional standard of proof of causation was unduly harsh, the loss of chance doctrine evolved.⁷

[¶ 15.] Courts that adopt the loss of chance doctrine in effect recognize a lost chance as a distinct cause of action, treating it as the compensable injury, not the underlying injury itself. DeBurkarte, 393 N.W.2d at 137; Herskovits, 664 P.2d at 487 (Pearson, J., concurring); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 45 (5th Ed.Supp.1988). The following excerpt provides a concise illustration of the loss of chance concept:

[SJuppose that evidence offered at trial tends to show that plaintiffs decedent, having contracted a form of cancer, had a 40% chance of cure and that defendant physician’s negligent failure to make a correct diagnosis on first visit reduced the chance of cure to 25%. In such a case, if we view the “death” of plaintiffs decedent, or even “death from cancer,” as the relevant event, plaintiffs evidence falls short of supporting a fact finding that the negligence was, more probably than not, a but-for cause of that event. More probably than not, it would have happened anyway because of the cancer. One ground for criticism of this outcome is that it does not take adequate account of the fact that in all cases death is even more certain than taxes. Only the time and cause of death may be in doubt. If evidence supports a finding that, more probably than not, negligence hastened death, ordinarily a wrongful death action lies. Should an action lie, also, when evidence supports a finding that, more probably than not, negligence reduced the patient’s chance of survival? Expressed another way, the question is: should we view reduction of the patient’s chance of survival as the relevant event, and allow recovery if more probably than not negligence was a cause of that event?

Keeton et al., supra, § 41, at 272 (5th Ed.1984) (footnotes omitted). Concomitant with recognizing the lost chance as an interest worthy of redress, the doctrine bifurcates the tort elements of causation and valuation. See King, supra, at 1389, 1363 (stating that “[a]s has already been argued, causation and valuation are analytically different concepts. The causation inquiry determines whether a defendant should be required to compensate a plaintiff for a loss. The valuation inquiry determines how much compensation is required,” and “[t]his distinction seems to have eluded the courts, with the result that lost chances in many respects are compensated either as certainties or not at all.”) (emphasis in original).

[¶ 16.] As a distinct cause of action, the loss of a chance must still be proven under the traditional standard of proof. That is, the plaintiff must still prove by a preponderance of evidence that the defendant’s conduct operated to reduce his chance of a more favorable outcome. Once causation is proven under the traditional standard, a value must be placed on the loss of the chance. For purposes of valuation, the loss of chance doctrine recognizes and compensates possibilities as well as probabilities. Consider the following from Professor King:

Rejection of the all-or-nothing approach to valuing the loss of a chance does not necessarily affect the continuing validity of the all-or-nothing rule for the causation inquiry. Thus, while the loss of a not-better-than-even chance of avoiding some adverse result should be a com-pensable loss, it still must be established that the defendant caused the destruction of that chance. The all-or-nothing principle would ordinarily still operate in the causation inquiry even if it were abandoned for the purposes of valuing a lost chance.

To illustrate, assume that a patient suffering from cancer is killed because a surgical instrument fails due to errors in the manufacturing process. Assume that the chance that the patient would be cured of cancer was only 30%. Under the approach proposed in this article, the loss of that chance would be compensable. But if it did not appear more likely than not that the defendant was the manufacturer of the instrument, the plaintiff would ordinarily be denied recovery for that loss. In other words, proof of a not-better-than-even chance that the defendant caused the loss of the chance of a cure would not suffice. If, however, the plaintiff proved that the defendant was probably the source of the product and thus the cause of the loss, the plaintiff might recover the value of the loss. Thus, the all-or-nothing idea may continue to be applied to causation even if it is abandoned for the purposes of valuation.

King, supra, at 1394-95 (footnote omitted).

[¶ 17.] A review of the cases and commentary on the subject persuades us to conclude that a loss of chance is an actionable injury in our state. Adoption of the loss of chance doctrine properly balances the competing concerns of a patient who receives negligent treatment, against those of the doctor who practices in the inherently inexact science of medicine. Properly applied, the loss of chance doctrine does not alter or eliminate the requirement of proximate causation. Rather, a plaintiff must still prove by a preponderance of evidence, or more likely than not, that the defendant’s actions reduced her chance of a better outcome. The key to a successful application of this doctrine is recognizing and valuing the lost chance as the compensable injury, not the underlying injury itself. Furthermore, although the doctrine relies on statistical evidence in order to assign a value to the lost chance, such use of mathematical calculations is already necessary under the traditional standards of causation and valuation. As Professor King points out, “How else ... do we even know whether we are talking about a better-than-even chance when applying the all-or-nothing rule?” King, supra, at 1385.

[¶ 18.] Nor should we reject the doctrine simply because it ostensibly places medical malpractice on a different plane of liability compared to other types of malpractice. The fact that the doctrine has thus far only been applied in a medical malpractice context in all likelihood derives from the availability of statistical probabilities in the field of medical science; such information is not widely available in other malpractice contexts. See King, supra, at 1386 n. 111.

[¶ 19.] Finally, the medical profession’s fears of increased malpractice litigation as a result of this doctrine are unfounded. Adopting loss of chance will not denigrate rural South Dakota medical care, as the dissent bleakly forecasts. Our current medical malpractice regime expects that any physician, rural or urban, who is uncertain about his ability to treat a patient’s condition will refer the patient to another who is more skilled or experienced. If the doctor fails to do this, and the patient loses a chance at recovery, then he should be liable for medical malpractice. Whether medical care is administered in a rural or urban setting, among the latest technology or with the most primitive of instruments, a patient still has the right to expect competence in his physician’s care. As has been with past medical malpractice situations, an error in judgment will not create liability. See Mangan, supra, at 325. The loss of chance doctrine is tied to the physician’s negligence, not the location of his office or whether it is chock-full of technology. Importantly, the doctrine prevents a physician from concealing his negligent actions in cases where the likelihood of recovery was initially less than 50% even under optimal conditions; a doctor should not be allowed to escape with impunity if his negligent acts lowered the chances even further.

[¶ 20.] A crucial aspect of recognizing lost chance as a compensable injury is the idea that a physician should be subject to liability only to the extent that he contributed to the harm. Therefore, the amount of damages recoverable under such an action should be equal to the percent of chance lost multiplied by the total value of a complete recovery. McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476-77 (Okla.1987). This approach to valuing lost chance was proffered by Professor King in his article, supra, at 1382, and has been adopted by a number of other jurisdictions. See DeBurkarte, 393 N.W.2d at 137; Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824, 828 (1985); Roberts, 668 N.E.2d at 484; McKellips, 741 P.2d at 476.⁸

[¶ 21.] Here, the record contains an affidavit from Dr. Mark E. Rupp, an infectious disease specialist from Omaha, Nebraska. After reviewing Jorgenson’s medical records and the deposition of another medical expert in the case, Rupp testified:

That based upon your Affiant’s review of these documents and your Affiant’s education, training and experience as an infectious disease physician, it is your Affiant’s opinion within a reasonable degree of medical certainty or probability, that because infection was not timely diagnosed and treated, Mr. Jorgenson lost a chance to prevent the subsequent outcome or amputation of his right lower extremity.

[¶ 22.] Vener’s motion for summary judgment was supported by transcripts of depositions from two other medical experts. One expert initially testified that he could not express an opinion about whether a referral to an infectious disease specialist early in the treatment process would have saved Jorgenson’s leg. Later on cross-examination, he stated that had the infection been treated earlier, he believed there would have been a better chance at saving the leg. He then clarified these seemingly inconsistent statements by testifying that had Jorgenson been under his charge, he would have changed the treatment regimen, but that still might not have saved Jorgenson’s leg.

[¶ 23.] Dr. Vener’s other medical expert testified that in his opinion a referral to an infectious disease expert would not have saved Jorgenson’s leg, and that there was no breach in the standard of care by Dr. Vener. Included in the record was an excerpt from a medical reference book, which generally stated that injuries such as Jorgenson’s were difficult to treat. According to the reference book, the ultimate outcome in a certain percentage of such cases was amputation.

[¶ 24.] Reviewing the evidence in a light most favorable to Jorgenson, a genuine issue of material fact exists whether Vener’s negligence caused the loss of a chance to save the leg. One expert testified that Vener caused a loss of the chance to save Jorgenson’s leg, another testified exactly the opposite, and a third was ambivalent. These disputes of fact cannot be properly disposed via summary judgment and must be resolved by the factfinder. Thus, summary judgment was improper, and the trial court’s decision must be reversed.

[¶ 25.] Reversed and remanded.

[¶26.] SABERS and GILBERTSON, Justices, concur. [¶ 27.] AMUNDSON, Justice, concurs specially. [¶ 28.] KONENKAMP, Justice, dissents.

1 . The parties cite Limpert v. Bail, 447 N.W.2d 48 (S.D.1989), Steckman v. Silver Moon, Inc., 77 S.D. 206, 90 N.W.2d 170 (1958), Lohr v. Watson, 68 S.D. 298, 2 N.W.2d 6 (1942), Voegeli v. Lewis, 568 F.2d 89 (8th Cir.1977), and other cases in support of their respective positions. However, none of these cases expressly endorse or renounce the loss of chance doctrine in a medical malpractice context.

2 . Vener correctly points out that the loss of chance doctrine has its roots in at least three sources. One source is Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981). The doctrine has also been attributed to § 323(a) of the Restatement (Second) of Torts, which provides:

One who undertakes, gratuitously or for consideration, 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 care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm[.]

Restatement (Second) of Torts § 323(a) (1965). A third source is a 1966 opinion from the Fourth Circuit Court of Appeals, Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966), wherein the court stated:

When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.

For a current, comprehensive review of the loss of chance doctrine, see generally, Man-gan, supra, and Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 Baylor L.Rev. 759 (1992).

3 . Mangan and Keith identified approximately fifteen states that have rejected the loss of chance doctrine. Mangan, supra, at 294 n. 143; Keith, supra, at 777 n. 112. Notable among those jurisdictions rejecting the doctrine is Minnesota, in Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn. 1980), and Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993).

4 . The Michigan legislature overruled the majority’s acceptance of the loss of chance doctrine in Falcon by enacting the following statutory amendment:

In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.

Mich. Comp. Laws § 600.2912a(2)(2000) (amended by 1993 Mich. Pub. Acts No. 78). Four years later, the Michigan Supreme Court further rejected the loss of chance doctrine by failing to recognize it in a case involving physical harm less than death. Weymers v. Khera, 454 Mich. 639, 563 N.W.2d 647 (1997).

5 . Cooper has since been overruled by the Ohio Supreme Court in Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480 (1996). Ohio now recognizes the loss of chance doctrine.

6 . Mangan and Keith identified approximately nineteen states that have accepted the loss of chance doctrine. See Mangan, supra, at 290 n. 117; Keith, supra, at 770 n. 64. Notable among those jurisdictions adopting the doctrine is Iowa, in DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986).

7 . As proffered by Professor King:

The adoption of the all-or-nothing approach to the loss of a chance has the obvious effect of enhancing the importance of the standard of proof, which determines the degree of certainty with which the party with the burden of proof must satisfy that burden in order to prevail. Perhaps for this reason, when results under the all-or-nothing rule have appeared too harsh to courts, attention has generally focused on the standard of proof as the appropriate doctrine for reformulation.

[[Image here]]

Atlempts to deal with the problem posed by the destruction of a chance by tinkering with the standard of proof can only further confuse matters of loss assignment. If the law on this question is to be rationalized, a vehicle other than the standard of proof will have to be used. The appropriate vehicle is a reevaluation of the traditional ways of thinking about the interest for which relief is sought and the role of chance in valuing that interest.

King, supra, at 1366, 1370 (footnote omitted).

8 . The patient's task under the loss of chance doctrine as now adopted in South Dakota would be to first prove that the physician’s conduct caused the loss of the chance by a preponderance of the evidence. Once causation has been established, the value of the injury, whether a possibility (less than 50%) or a probability (greater than 50%), is com-pensable. Assuming, for example, that a patient had a 40% chance of recovery under optimal conditions, and the physician's negligence destroyed that chance, the value of the lost chance would be 40% of the total value of a complete recovery. Similarly, if the patient’s chance at recovery was 60% and the physician's negligence eliminated that chance, the value of the lost chance would be 60% of the value of a complete recovery. Or, if instead of completely eliminating the chance of recovery, the physician's negligence merely reduced the chance of recovery from 40% to 20%, then the value of the lost chance would be 20% of the value of a complete recovery.