Parkes v. Hermann

• Court: Supreme Court of North Carolina
• Decided: December 18, 2020
• Docket: 241PA19
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 241PA19

Filed 18 December 2020

ANITA KATHLEEN PARKES

v. JAMES HOWARD HERMANN

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 265 N.C. App. 475, 828 S.E.2d 575 (2019), affirming an order

entered on 25 May 2018 by Judge Jesse B. Caldwell III in Superior Court, Lincoln

County, granting defendant’s motion for summary judgment. Heard in the Supreme

Court on 1 September 2020.

Melrose Law, PLLC, by Mark R. Melrose and Adam R. Melrose, for plaintiff- appellant.

Roberts & Stevens, P.A., by Phillip T. Jackson, David C. Hawisher, and Elizabeth Dechant, for defendant-appellee.

D. Hardison Wood and Charles Monnett III for North Carolina Advocates for Justice, amicus curiae.

John H. Beyer and Katherine H. Graham for North Carolina Association of Defense Attorneys, amicus curiae.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, by Christopher G. Smith, for North Carolina Chamber Legal Institute, amicus curiae.

Linwood Jones for North Carolina Healthcare Association, amicus curiae.

Norman F. Klick Jr., Jerry A. Allen, and Jocelyne Riehl for North Carolina Medical Society and North Carolina College of Emergency Physicians, amici curiae. PARKES V. HERMANN

Opinion of the Court

NEWBY, Justice.

In this case we are asked to change our existing jurisprudence regarding

proximate causation and to establish a new cause of action, “loss of chance.” We

decline to make these significant changes because they are best left to the legislative

branch. Specifically, this case is about whether a patient who experienced a stroke

failed to show, more likely than not, that the physician’s negligence caused her

diminished neurological function. Further, this case raises the question of whether

the patient’s “loss of chance” at a better outcome following her stroke is a separate

type of injury for which she could recover in medical malpractice action. Plaintiff

concedes that she failed to show that it was more likely than not that defendant’s

negligence caused her diminished neurological function. Nonetheless, plaintiff argues

her claims should stand because defendant’s negligence diminished her likelihood of

full recovery, thus proximately causing her injury. Further, plaintiff argues that her

“loss-of-chance” claim is a separate claim. We now affirm the decision of the Court of

Appeals, which affirmed the trial court’s decision to grant summary judgment to

defendant.

Because the trial court granted summary judgment, we review the facts in the

light most favorable to plaintiff, the nonmoving party. As alleged in plaintiff’s

complaint, at approximately 12:15 a.m. on or about 24 August 2014, plaintiff told her

husband she thought she might be having a stroke as “her left arm and left leg felt

heavy and weak and . . . her tongue felt thick and her speech was slurred.” Her family

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rushed her to the nearby hospital. By approximately 1:35 a.m. plaintiff was in triage

at the hospital complaining of slurred speech and numbness in her left arm,

symptoms that had started about one hour earlier. Plaintiff received a CT scan of her

head at approximately 1:35 a.m., and those results were available soon after. At

approximately 3:00 a.m. defendant contacted plaintiff’s primary care physician, Dr.

Wheeler, and erroneously communicated that plaintiff “had no neurological deficits.”

Plaintiff’s same symptoms continued and at about 6:00 a.m. the hospital staff noted

that plaintiff “had left facial droop, left arm drift and slightly slurred speech.” At

approximately 7:15 a.m. Dr. Wheeler arrived at the hospital, noted plaintiff’s

neurological signs and symptoms, ordered a neurological consult, and admitted

plaintiff to the hospital. After the neurological consult, Dr. Wheeler spoke with the

neurologist who advised her that plaintiff’s opportunity to benefit from certain time-

sensitive treatment, namely administering alteplase, a tissue plasminogen activator

(“tPA”), had passed.

In her complaint, plaintiff alleged that, “[d]ue to the delay in diagnosis, the

Plaintiff has suffered additional harms, damages and losses, including permanent

injuries, and including additional medical expenses for which the Defendant is

liable.” Plaintiff claimed defendant “was negligent and failed to use reasonable care

and diligence” to timely diagnose plaintiff’s stroke using the methods and techniques

available, assess and reassess plaintiff’s conditions which demonstrated the signs of

an ongoing stroke, and timely treat plaintiff with tPA. Plaintiff alleged that her injury

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was “a direct and proximate result” of defendant’s negligence and, “[h]ad timely and

appropriate medical care been provided to the Plaintiff, then her ultimate medical

outcome would have had an increased opportunity for an improved neurological

outcome.” This secondary claim, that plaintiff lost an increased opportunity for an

improved neurological outcome by defendant’s failure to timely treat her with tPA, is

referred to as plaintiff’s loss-of-chance claim.

Defendant moved for summary judgment, arguing that the stroke caused

plaintiff’s injuries, not defendant’s failure to treat plaintiff with tPA, and that

plaintiff’s loss-of-chance claim is not a recognized claim in North Carolina. The trial

court, having reviewed the pleadings, depositions, and memoranda of law submitted

by both parties, granted summary judgment in favor of defendant.

On appeal, a unanimous panel of the Court of Appeals acknowledged that

plaintiff’s injury was proximately caused by the stroke and not by defendant’s

negligence. Parkes v. Hermann, 265 N.C. App. 475, 477, 828 S.E.2d 575, 577 (2019).

The evidence in the light most favorable to plaintiff only showed a 40% chance that

defendant’s negligence caused plaintiff’s injury. In other words, there was only a 40%

chance that plaintiff’s condition would have improved if defendant had properly

diagnosed plaintiff and timely administered tPA. Id. By presenting evidence of only

a 40% chance, plaintiff failed to show it was more likely than not that defendant’s

negligence caused plaintiff’s current condition. Id.

Plaintiff also claimed that the loss of the 40% chance itself was a cognizable

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and separate type of injury—her loss of chance at having a better neurological

outcome—that warranted recovery. Id. at 478, 828 S.E.2d at 577–78. The Court of

Appeals discussed that a plaintiff cannot recover for a loss of less than a 50% chance

under “the ‘traditional’ approach” applied to loss-of-chance claims in other

jurisdictions, but a plaintiff may recover the full value of a healthier outcome if he or

she can show that, more likely than not, the outcome could have been achieved absent

the defendant’s negligence. Id. at 478, 828 S.E.2d at 578 (citing Valadez v. Newstart,

LLC, No. W2007-01550-COA-R3-CV, 2008 WL 4831306, at *4 (Tenn. Ct. App. Nov. 7,

2008)). Here plaintiff’s loss was at best a 40% chance; thus, plaintiff could not recover

under this traditional approach.

Regardless, relying in part on this Court’s precedent in Gower v. Davidian, 212

N.C. 172, 193 S.E. 28 (1937), the Court of Appeals stated that this Court had not

adopted “loss of chance” as a separate cause of action, Parkes, 265 N.C. App. at 478,

828 S.E.2d at 578, and concluded that “any change in our negligence law lies ‘within

the purview of the legislature and not the courts,’ ” id. at 478–79, 828 S.E.2d at 578

(quoting Curl v. Am. Multimedia, Inc., 187 N.C. App. 649, 656–57, 654 S.E.2d 76, 81

(2007)). Thus, the Court of Appeals affirmed the trial court’s order granting summary

judgment in favor of defendant. Id. at 479, 828 S.E.2d at 578.

Summary judgment is proper if “there is no genuine issue as to any material

fact and . . . any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1,

Rule 56(c) (2019). “The movant is entitled to summary judgment . . . when only a

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question of law arises based on undisputed facts.” Ussery v. Branch Banking & Tr.

Co., 368 N.C. 325, 334, 777 S.E.2d 272, 278 (2015) (citation omitted). “All facts

asserted by the [nonmoving] party are taken as true [and] . . . viewed in the light most

favorable to that party.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000).

“This Court reviews appeals from summary judgment de novo.” Ussery, 368 N.C. at

334–35, 777 S.E.2d at 278 (citation omitted).

Here plaintiff’s filings and discovery showed that for tPA to be possibly

beneficial, it must be administered within three hours of the onset of a certain kind

of stroke. A medical study reviewed by plaintiff’s expert showed that stroke patients

who receive placebo treatment, or in other words are not treated with tPA, have

roughly a 20% to 26% chance of a good neurological outcome, such as a full or nearly

full recovery. Those patients who receive the treatment add an additional thirteen

percentage points to their chance of recovery, resulting in a 39% total chance of a good

neurological outcome. Based on the expert’s testimony, with the treatment also comes

a certain degree of risk, dependent on the patient, with a 6.4% risk of doing harm.

According to plaintiff’s expert, plaintiff “had an opportunity for [a] maximum benefit

of 35 [percent]—well, according to the trial, I say about 30 to 35, the trial is up to 39

percent, but yes, under 40 percent.”1 Plaintiff claims that these percentages represent

1 The Court of Appeals assumed a 40% total chance of an improved neurological outcome when viewing the evidence in the light most favorable to plaintiff. See Parkes, 265 N.C. App. at 477, 828 S.E.2d at 577.

-6- PARKES V. HERMANN

the lost chance of an increased opportunity for an improved neurological outcome had

tPA been administered in time and constitute a compensable injury separate from

traditional negligence.

As determined by the Court of Appeals, neither the additional thirteen

percentage points, the 30% to 35% total chance, nor the 40% total chance of an

improved neurological outcome meets the “more likely than not,” or greater than a

50% chance, threshold for proximate cause in a traditional medical malpractice claim.

But, plaintiff argues that the loss-of-chance claim is appropriate when a plaintiff

cannot meet the greater than a 50% threshold, thereby allowing a plaintiff to present

a loss-of-chance claim to the jury when a traditional negligence claim may not survive

summary judgment. Plaintiff advocates for lowering the proximate cause standard

for cases like this one because the loss of chance for an improved outcome, whether it

be the additional thirteen percentage points, the 30% to 35% total chance, or the 40%

total chance of an improved neurological outcome, represents a compensable injury

separate from a traditional medical malpractice claim. Plaintiff maintains that

advances in medicine allow these percentages to translate to calculable damages. The

issue presented to this Court is whether losing the chance for an increased

opportunity for an improved outcome is a cognizable and compensable claim in North

Carolina. We hold that it is not.

In Gower, the plaintiff sustained a neck fracture during a motor-vehicle

accident. 212 N.C. at 173, 193 S.E. at 29. This Court considered whether a physician

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was negligent in failing to timely diagnose the neck fracture, which resulted in about

a thirteen-day delay in diagnosis. Id. at 174, 193 S.E. at 29. The plaintiff argued that

the delay in the diagnosis caused the fracture to develop a callus, preventing it from

being set properly once diagnosed. Id. at 174, 193 S.E. at 29–30. To have the

opportunity to present his case to the jury, “the burden rested upon the plaintiff to

offer evidence tending to show a causal connection between his injury and the

negligent conduct of the defendant.” Id. at 175, 193 S.E. at 30.

In an attempt to show that causal connection, the plaintiff offered testimony of

an expert witness who opined “that had this case received immediate attention and

had that fracture and dislocation reduced, his chances for further recovery, or for

perfect recovery, would have been much greater.” Id. “Analyzing this statement,” the

Court “found [it] to be entirely conditional.” Id. The expert opinion simply failed to

establish proximate cause between the defendant’s delay in diagnosis and the injury

sustained by the plaintiff: “His opinion in this respect is based entirely upon an actual

reduction of the fracture, which the evidence discloses could not be reduced, and he

merely says that the chances for further recovery would have been much greater. The

rights of the parties cannot be determined upon chance.” Id. at 176, 193 S.E. at 30.

In short, the injury sustained by the plaintiff was attributable to the motor-vehicle

accident rather than a delay in diagnosis. See id. In the light most favorable to the

plaintiff, the expert testimony that the plaintiff would have had an improved chance

of recovery if certain facts were true was inadequate. Id. The loss of that chance was

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not a compensable injury that could support a negligence claim. Id. at 176, 193 S.E.

at 30–31.

Even if the Court in Gower did not outright reject what is today called a loss-

of-chance claim, it firmly framed medical malpractice claims within the confines of

traditional proximate cause, which allows a negligence claim to proceed when the

evidence shows that the negligent act more likely than not caused the injury. If the

evidence falls short of this causation standard, then there is no recovery. The Court

did not relax the proximate cause requirement for a medical malpractice claim when

presented with the opportunity. See, e.g., Buckner v. Wheeldon, 225 N.C. 62, 65, 33

S.E.2d 480, 483 (1945) (A physician is liable “only when the injurious result flows

proximately” from the physician’s negligence.). Under a lesser standard, a plaintiff

alleging medical malpractice need only offer evidence tending to show that the

defendant’s negligence “possibly” caused his injury, rather than “probably” caused it.

Such a standard would create an anomaly in medical malpractice actions. Moreover,

damages for a possible chance simply cannot fit within our traditional framework.

Here the evidence showed that if plaintiff had received the tPA medication in

time and if the tPA medication had worked in her favor, then her chances for a better

recovery would have been greater. The expert’s opinion relied on the assumption that

the tPA medication would have improved plaintiff’s condition. To reach plaintiff’s

desired result would require a departure from our common law on proximate

causation and damages since a loss-of-chance claim would award for the possibility

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that defendant’s negligence contributed to plaintiff’s condition. We decline to do so.

Such a policy judgment is better suited for the legislative branch of government.2 See

Henson v. Thomas, 231 N.C. 173, 176, 56 S.E.2d 432, 434 (1949). Accordingly, the

trial court properly granted summary judgment to defendant. We affirm the holding

of the Court of Appeals.

AFFIRMED.

2 The General Assembly has already modified the common law in this area and is

certainly equipped to do so again if it so desires.

-10- Justice EARLS dissenting.

Early in the morning on 24 August 2014, plaintiff Anita Parkes began

experiencing concerning neurological symptoms.1 She believed she was having a

stroke. Her family rushed her to Highlands-Cashiers Hospital. Dr. Hermann, an

emergency physician, evaluated her at 1:47 a.m., approximately one and a half hours

after the initial onset of her neurological symptoms. Ms. Parkes complained of left

arm weakness and slurred speech. Defendant called Ms. Parkes’ primary care

physician and said that Ms. Parkes’ speech was slurred but that he “was not seeing

it.” He attempted to discharge plaintiff from the hospital, but her family protested,

and Dr. Hermann agreed to keep her overnight “for observation.” The following

morning, Ms. Parkes’ family returned to the hospital, where they found Ms. Parkes

laying on a stretcher in the emergency-room area suffering from obvious facial

drooping. It would later be determined that plaintiff had suffered an acute ischemic

stroke.

The standard of care for treating a patient who incurs an ischemic stroke is to

1 At the motion for summary judgment stage, “[a]ll facts asserted by the adverse party

are taken as true, and their inferences must be viewed in the light most favorable to that party.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citations omitted). Accordingly, on appeal, we consider the facts as alleged by Ms. Parkes to be true. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (“On appeal of a trial court’s allowance of a motion for summary judgment . . . [e]vidence presented by the parties is viewed in the light most favorable to the non-movant.”). PARKES V. HERMANN

Earls, J., dissenting

administer alteplase, a tissue plasminogen activator (tPA), which is the only known

FDA-approved treatment for this condition. A patient who receives tPA within three

hours of the onset of neurological symptoms has an approximately 30%–35% chance

of ultimately experiencing improved neurological functioning. While administering

tPA is not without risk, a patient who receives tPA has a measurably better chance

of recovery than a patient who does not receive the treatment. Sadly, Ms. Parkes did

not recover, and she continues to suffer neurological symptoms to this day, including

severely impaired functioning on the left side of her body.

As alleged by Ms. Parkes, if Dr. Hermann had administered tPA at or around

the time he initially examined her, she would have had a significantly better chance

of recovering from her stroke. Ms. Parkes asserts that she lost her chance of recovery

due to Dr. Hermann’s failure to adhere to the appropriate standard of medical care.

Our decision today denies Ms. Parkes the opportunity to seek to hold Dr. Hermann

liable for the consequences of his assertedly negligent actions. According to the

majority, this result is necessary because Ms. Parkes “failed to show that it was more

likely than not that defendant’s negligence caused her diminished neurological

function.” The majority is correct that, in North Carolina, a plaintiff who brings a

common law negligence claim has the burden of proving a probabilistic connection

between his or her alleged injury and the defendant’s purportedly negligent conduct.

See Phelps v. City of Winston-Salem, 272 N.C. 24, 30, 157 S.E.2d 719, 723 (1967) (“If

the connection between negligence and the injury appears unnatural, unreasonable

and improbable in the light of common experience, the negligence, if deemed a cause

of the injury at all, is to be considered a remote rather than a proximate cause.”) Ms.

Parkes concedes that the scientific evidence cannot support the conclusion that Dr.

Hermann’s failure to administer tPA was more likely than not the cause of the

neurological symptoms she continues to experience. Nevertheless, she asserts that

she can carry her burden by showing that Dr. Hermann’s negligent conduct more

likely than not caused her to lose her chance of recovering from the stroke.

In so arguing, Ms. Parkes urges us to adopt the “loss of chance” doctrine, which

has been recognized by courts applying the common law of negligence in no less than

twenty-five jurisdictions. See Lauren Guest, David Schap & Thi Tran, The “Loss of

Chance” Rule as a Special Category of Damages in Medical Malpractice: A State-by-

State Analysis, 21 J. Legal Econ. 53, 58–60 (2015) (reviewing case law as of 2014 and

concluding that 41 states had addressed loss of chance, with 24 states having adopted

some version of the doctrine).2 Under the loss of chance doctrine, the injury that Ms.

Parkes seeks redress for is not her diminished neurological functioning.3 Instead, Ms.

2 Since then, the Oregon Supreme Court has also recognized the loss of chance doctrine. Smith v. Providence Health & Servs.-Oregon, 361 Or. 456, 393 P.3d 1106 (2017). 3 In stating that Ms. Parkes “advocates for lowering the proximate cause standard,”

the majority appears to conflate two distinct theories of recovery—one that does argue for relaxing the proximate cause standard to allow a plaintiff to recover directly for his or her physical injuries even if there is a less than 50% chance that the injuries were caused by a defendant’s negligent conduct and one that argues for leaving the proximate causation standard unaltered but defining the plaintiff’s lost chance of recovery as a distinct, cognizable category of injury. Plaintiff advocates for the latter, which still requires a showing that the defendant’s conduct was the proximate, probable cause of the plaintiff’s injury. I examine the merits of Ms. Parkes’ argument on the basis of this theory alone.

Parkes asserts that Dr. Hermann’s negligent conduct deprived her of the opportunity

to recover from her ischemic stroke. In other words, Ms. Parkes claims that due to

Dr. Hermann’s failure to administer tPA, she lost the 30%–35% chance of an

improved outcome that she would have enjoyed if Dr. Hermann had adhered to the

standard of care. Even under this theory, Ms. Parkes must still satisfy the four

elements of a common law negligence claim: she must show that “(1) the defendant

owed the plaintiff a duty of care; (2) the defendant’s conduct breached that duty; (3)

the breach was the actual and proximate cause of the plaintiff’s injury; and (4)

damages resulted from the injury.” Parker v. Town of Erwin, 243 N.C. App. 84, 110,

776 S.E.2d 710, 729–30 (2015) (citation omitted). The only difference is that in a loss

of chance claim, the injury is defined as the plaintiff’s diminished opportunity to

recover due to the defendant’s negligent conduct, not the plaintiff’s physical condition

itself. See Delaney v. Cade, 255 Kan. 199, 215, 873 P.2d 175, 185 (1994). (“In an action

to recover for the loss of a chance to survive or for the loss of a chance for a better

recovery, the plaintiff must first prove the traditional elements of a medical

malpractice action by a preponderance of the evidence.”). On this theory, Ms. Parkes

argues her claim should survive defendant’s motion for summary judgment because

she has alleged that (1) Dr. Hermann owed her a duty of care when he treated her in

the emergency room, (2) Dr. Hermann’s failure to diagnose her stroke and administer

tPA breached that duty, (3) Dr. Hermann’s actions were the actual and proximate

cause of her foregone 30%–35% chance of recovering from the stroke, and (4) damages

resulted from her lost chance of recovery.

To date, North Carolina courts have not recognized a common law negligence

claim under the loss of chance theory Ms. Parkes advances in the present case.

Despite the majority’s characterization of our precedents, this Court has never

squarely considered the loss of chance doctrine. Ms. Parkes does not ask this Court

to allow her claim as an exercise of sound policy judgment, nor does she ask us to

invent a new cause of action. Instead, Ms. Parkes invites this Court to do something

it routinely and necessarily does: she invites us to adapt and apply common law

principles to evolving conditions and new factual circumstances. See, e.g., Young v.

W. Union Tel. Co., 107 N.C. 370, 385, 11 S.E. 1044, 1048 (1890) (recognizing for the

first time that “mental anguish is actual damage”); Jackson v. Bumgardner, 318 N.C.

172, 178, 347 S.E.2d 743, 747 (1986) (recognizing for the first time that pregnancy

can be a kind of legal injury); Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 178

(1992) (recognizing for the first time “a common law negligence claim against a social

host for serving alcoholic beverages”). Indeed, when this Court abolished the doctrine

of charitable immunity in 1967, it looked to how the common law had been evolving

in other states, quoting with approval the following observation from an opinion of

the Oregon Supreme Court which abandoned the rule in 1963:

[I]t is neither realistic nor consistent with the common-law tradition to wait upon the legislature to correct an outmoded rule of case law. . . . Negligence law is common law. . . . The fact that a rule has been followed for fifty years is not a convincing reason why it must be followed for

another fifty years if the reasons for the rule have ceased to exist. . . . Tort law in 1963 differs from tort law in 1863 for the most part because of the work of the courts. When courts have recognized the need for remedies for new injuries, the remedies have been found.

Rabon v. Rowan Mem’l Hosp., Inc., 269 N.C. 1, 15, 152 S.E.2d 485, 494 (1967)

(alterations in original) (quoting Hungerford v. Portland Sanatorium & Benev. Ass’n,

235 Or. 412, 414–15, 384 P.2d 1009, 1010–11 (1963)). This Court has an obligation

to do justice when interpreting the common law. See, e.g., State v. Jones, 367 N.C.

299, 313, 758 S.E.2d 345, 354 (2014) (“The common law ‘is not inflexible, and

therefore we will not hesitate to abandon a rule which has resulted in injustices,

whether it be criminal or civil.’ ”); Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d

882, 892–93 (1998) (“Nonetheless, we also are aware that ‘[i]t is the tradition of

common-law courts to reflect the spirit of their times and discard legal rules when

they serve to impede society rather than to advance it.’ ”). Abdicating our

responsibility, as the majority does here, based on a vague, legally unsupported

intuition that this decision should be made by the legislature is just as improper as

overriding a legislative enactment to implement a different policy option. The

possibility that the legislature could act in an area of the common law in which it has

not yet enacted legislation is an excuse, not a reasoned explanation for eschewing our

judicial duty, no matter how strenuously the majority invokes the need for deference

to our coordinate branch of government.

Ultimately, I do not believe that the harsh result of denying Ms. Parkes the

opportunity to hold Dr. Hermann liable for his negligent conduct is compelled by our

precedents, by “traditional” principles of tort law, or by the separation of powers.

Instead, I agree with the courts in the majority of jurisdictions which have examined

the loss of chance doctrine and concluded that claims like Ms. Parkes’ are cognizable.

Accordingly, I dissent and would permit Ms. Parkes to present her claim to a jury on

the theory that her lost chance of recovering from her ischemic stroke is a cognizable

injury.

Both the Court of Appeals and the majority erroneously state that recognizing

the loss of chance doctrine would create tension with this Court’s settled precedents.

The precedents the Court of Appeals and the majority rely upon are simply irrelevant

to the issue before this Court today. First, Gower v. Davidian, 212 N.C. 172, 193 S.E.

28 (1937), did not “outright reject what is today called a loss of chance claim,” nor did

it “firmly frame[ ] medical malpractice claims within the confines of traditional

proximate cause.” A close reading of Gower demonstrates that it is neither controlling

nor persuasive authority because the evidence presented in that case conclusively

defeated plaintiff’s negligence claim under any theory of injury.

The plaintiff in Gower was injured in an automobile accident. Id. at 173, 193

S.E. at 29. On the day of the accident, the plaintiff was admitted to a hospital, where

he was examined by the defendant. Id. at 173–74, 193 S.E. at 29. At the summary

judgment stage, the Court accepted as alleged that the defendant had failed to

conduct a thorough physical examination before discharging the plaintiff to his home

without treatment. Id. Less than two weeks after the accident, the plaintiff was

admitted to Duke Hospital, where physicians diagnosed him with a fractured neck.

Id. at 174, 193 S.E. at 29. Surgeons at Duke Hospital attempted to reset the fracture,

but “[d]ue to the condition and location of his injury it was impossible to apply

sufficient traction to reset the bone, and [the plaintiff suffered] a permanent injury.”

Id. Subsequently, the plaintiff filed suit against the defendant seeking damages for

the defendant’s assertedly negligent failure to appropriately diagnose and treat the

plaintiff’s neck fracture. Id.

At trial, the plaintiff’s expert witness testified that “had that fracture and

dislocation been replaced, put in proper position immediately it would have been

much easier [to fix], but to wait until after two weeks it would be almost impossible

to replace it owing to callus.” Id. at 175, 193 S.E. at 30. In modern parlance, the expert

witness testified that the standard of care for resetting fractures demanded an

attempt to reset the bone within two weeks. Id. After two weeks, the risk of calluses

forming significantly diminished the likelihood that treatment would be successful.

Id. It was undisputed that the defendant did not attempt to reset the plaintiff’s

fracture. Id. However, the plaintiff still received a thorough examination by

physicians at Duke Hospital within two weeks of his injury. Id. The physicians

determined that the fracture could not be reset, but it was not because calluses had

formed. As the Court explained, “[a]ll the evidence tends to show that [a] callus does

not develop to an extent that would interfere with the resetting of a fracture within

a minimum of two weeks, and that there was no evidence of [a] callus around the

fracture of plaintiff’s neck which would impede or interfere with the resetting of the

bone [at the time he was examined at Duke Hospital].” Id. The evidence established

that the plaintiff’s chances of recovery were the same on the day he was appropriately

treated by the Duke Hospital physicians as they were on the day the defendant

negligently failed to adhere to the standard of care. Id. at 176, 193 S.E. at 30–31. The

fact that the Duke Hospital physicians could not reset the plaintiff’s fracture resulted

from “the condition and location of his injury,” not because of the time that had

elapsed between the defendant’s examination and the examination conducted by the

Duke Hospital physicians. Id. at 174, 193 S.E. at 29. Accordingly, the defendant could

affirmatively prove that his actions had no impact on either the plaintiff’s actual

recovery or his chances of recovering. Id.

The evidence discloses that the use of modern equipment and methods by trained and skillful surgeons at a time when callus had not developed [e.g., within two weeks of incurring the fracture] sufficiently to interfere with proper setting of the bone has availed nothing. The character and location of the fracture is such that proper traction cannot be successfully used. Unfortunately, upon this record as it now appears, the plaintiff has suffered an injury that could not then and cannot now be relieved by the medical profession, except by performing a most dangerous operation. There is no evidence of any injury which the plaintiff sustained by reason of the delay of less than two weeks caused by the alleged conduct of the defendant. In so far as plaintiff’s right to recover is concerned, what boots it that the defendant did not make a thorough clinical and X-ray examination? Plaintiff’s unfortunate condition results from his own act and not

from any negligent conduct of the defendant.

Id. at 176, 193 S.E. at 30–31 (emphases added).4 Unlike the plaintiff in Gower, Ms.

Parkes did not receive appropriate treatment within the time period prescribed by

the applicable standard of care.

These facts help contextualize this Court’s statement in Gower that “[t]he

rights of the parties cannot be determined upon chance.” Id. at 176, 193 S.E. at 30.

Of course, the “rights of the parties” are, to some extent, “determined upon chance”

in every medical malpractice case. Any individual patient’s right to hold a physician

liable for negligent conduct inevitably depends on circumstances out of either parties’,

or any parties’, forecast and control.5 Denying Ms. Parkes an opportunity to bring her

loss of chance claim to a jury will not purge “chance” from North Carolina’s medical

malpractice law. Instead, our statement that “[t]he rights of the parties cannot be

determined upon chance” only refers to the nature of the evidence required to

4 To analogize the facts of Gower to the present case, it would be as if thirty minutes

after Dr. Hermann initially examined Ms. Parkes, a second physician examined her, correctly diagnosed her stroke, and administered tPA within three hours of the onset of her neurological symptoms. If Ms. Parkes failed to recover despite receiving tPA within the three- hour window, a court could ascertain that Dr. Hermann’s negligent failure to diagnose and treat Ms. Parkes had not deprived her of an opportunity to recover from her stroke. 5 For example, imagine that Treatment X is the only available treatment for Condition

Y. When administered, Treatment X is effective for 80% of patients who suffer from Condition Y. If left untreated, Condition Y is fatal for 90% of patients and inconsequential for all others. If a physician negligently fails to administer Treatment X to a patient suffering from Condition Y, the “rights of the parties” will be fixed by “chance”—the 20% chance that the patient would not have recovered even if she had received Treatment X (creating liability for an action that did not contribute to the patient’s death) or the 10% chance that the patient will recover without treatment (absolving liability for an otherwise negligent act).

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establish a causal link between a defendant’s conduct and a plaintiff’s alleged injury.

See Shumaker v. United States, 714 F. Supp. 154, 163 (M.D.N.C. 1988) (“The supreme

court’s principal concern [in Gower and its progeny] was the sufficiency of the

evidence of causation, not recognition of a different type of harm.”). In Gower, the

only evidence the plaintiff presented which supported his argument that the

defendant’s negligence caused his injury was speculative testimony that “had this

case received immediate attention and had that fracture and dislocation reduced, [the

plaintiff’s] chances for further recovery, or for perfect recovery, would have been much

greater.” Gower, 212 N.C. at 175, 193 S.E. at 30. Yet, the plaintiff’s evidence also

established that even if he had received “immediate attention,” there was no chance

that his “fracture and dislocation” could have been “reduced.” Id. at 176, 193 S.E. at

30. The expert witness “testified that an effort to reset [a fracture] should be made

within two weeks,” and other testimony established that “an effort was actually made

by [a] competent physician[ ] to reset the fracture within the two weeks.” Id. The

expert witness’s testimony that “the chances for further recovery would have been

much greater [if the plaintiff received immediate treatment]” was both unsupported

by medical evidence and affirmatively repudiated by events as they unfolded. Id. A

naked assertion that there is a “chance” the plaintiff might have recovered if the

defendant had not acted negligently is, without supporting evidence, insufficient to

meet the plaintiff’s burden of proof. That is no less true in the context of loss of chance

claims. If the only evidence Ms. Parkes presented was an expert witness’s bare

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testimony that there was a “chance” tPA would have improved her odds of recovery,

the trial court certainly would not have erred in denying her claim.

The majority’s reliance on Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480

(1945), is similarly misplaced. In Buckner, this Court did not pass up on an

“opportunity” to “relax the proximate cause requirement for a medical malpractice

claim” as the majority asserts. Instead, the Court in Buckner merely reaffirmed that

a qualified physician who treats a patient in accordance with the applicable standard

of care cannot be held liable for the patient’s subsequent failure to fully recover.

[I]t has been repeatedly held here that the physician or surgeon who undertakes to treat a patient implies that he possesses the degree of professional learning, skill and ability which others similarly situated ordinarily possess; that he will exercise reasonable care and diligence in the application of his knowledge and skill to the patient’s care; and exert his best judgment in the treatment and care of the case entrusted to him. And in accordance with rules of general application the liability of a surgeon cannot be predicated alone upon unfavorable results of his treatment, and he may be held liable for an injury to his patient only when the injurious result flows proximately from want of that degree of knowledge and skill ordinarily possessed by others of his profession, or from the omission to exercise reasonable care and diligence in the application of his knowledge and skill to the treatment of his patient.

Id. at 65, 33 S.E.2d at 483 (cleaned up) (emphasis added). It is incorrect to construe

Buckner to stand for anything beyond the uncontroversial proposition that a qualified

physician who provides appropriate medical care to a patient will not be held liable

because he or she has not acted negligently, even if the patient does not fully recover.

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Regardless, the disposition in Buckner was reversal of the trial court’s grant of

defendant’s motion for summary judgment, which allowed the plaintiff to bring his

case to trial. Id. at 66, 33 S.E.2d at 483 (“While all the injurious results complained

of may not be attributed to the negligence of the attending physician . . . we think

there was sufficient evidence to warrant submission of the case to the jury . . . .”).

Thus, even if there were some indication that the Buckner plaintiff had invited this

Court to recognize the loss of chance doctrine and even if there were some language

in the opinion that could be fairly construed as expressing skepticism about the

doctrine—and there is neither—the statement the majority relies upon would be

dicta, at most. See Moose v. Bd. of Comm’rs of Alexander Cnty., 172 N.C. 419, 433, 90

S.E. 441, 448 (1916) (“The doctrine of stare decisis contemplates only such points as

are actually involved and determined in a case, and not what is said by the court or

judge outside of the record or on points not necessarily involved therein. Such

expressions, being obiter dicta, do not become precedents.”). The view of a federal

district court called upon to apply North Carolina negligence law further confirms

that Gower, Buckner, and more recent Court of Appeals’ decisions have not expressed

a clear opinion one way or the other on loss of chance claims. Shumaker, 714 F. Supp.

at 163–64 (previous decisions by North Carolina courts “can, but need not, be

construed as inconsistent with recognizing lost possibility as a compensable loss.”).

In straining to apply extraneous precedents to the novel legal question

presented to us today, the majority overlooks numerous more relevant precedents

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which indicate that recognizing the loss of chance doctrine is not inconsistent with

our common law tort jurisprudence. For example, when this Court has previously

confronted an issue “of first impression” under North Carolina’s common law, “[w]e

have accordingly investigated the law in other jurisdictions to see how these

jurisdictions have ruled on cases similar to the one at bar.” Jackson, 318 N.C. at 178,

347 S.E.2d at 747; see also Gillikin v. Bell, 254 N.C. 244, 246–47, 118 S.E.2d 609, 611

(1961) (citing numerous cases from sister jurisdictions in “ascertain[ing] if [the

common law] afforded such a right of action”); Rabon, 269 N.C. at 12, 152 S.E.2d at

493 (examining the “view[s] expressed in the recent decisions of our sister States”

before overturning North Carolina precedent and abolishing the charitable immunity

doctrine). Of course, decisions from sister jurisdictions are only instructive in this

Court to the extent that we find their “reasoning and the results . . . persuasive.”

Jackson, 318 N.C. at 179, 347 S.E.2d at 748. Nonetheless, it is notable that the

majority omits any reference to the numerous well-reasoned decisions from our sister

jurisdictions recognizing the loss of chance doctrine as consonant with common law

tort principles. See, e.g., Matsuyama v. Birnbaum, 452 Mass. 1, 4, 890 N.E.2d 819,

823 (2008) (“We conclude that recognizing loss of chance in the limited domain of

medical negligence advances the fundamental goals and principles of our tort law.”);

Smith v. Providence Health & Servs.-Oregon, 361 Or. 456, 479, 393 P.3d 1106, 1118

(2017) (“We agree with plaintiff that . . . the causation element of a medical negligence

cause of action in Oregon . . . can apply to the loss of chance when it is understood as

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an injury.” (cleaned up)).

A fair reading of our precedents confirms that recognizing the loss of chance

doctrine serves the animating purposes and principles of North Carolina’s common

law of torts. This Court has endorsed the idea that, under the common law, “liability

for tortious conduct is the general rule; immunity is the exception.” Rabon, 269 N.C.

at 4, 152 S.E.2d at 487; see also Young, 107 N.C. at 373, 11 S.E. at 1045 (“The principle

that for the violation of every legal right, nominal damages, at least, will be allowed,

applies to all actions, whether for tort or breach of contract, and whether the right is

personal, or relates to property.”). We have refused to permit concerns regarding how

damages should be calculated to deter us from recognizing novel categories of injury.

Id. at 385, 11 S.E. at 1049 (“The difficulty of measuring damages to the feelings is

very great, but it is submitted to the jury in many other instances, as above stated,

and it is better it should be left to them under the wise supervision of the presiding

judge, with his power to set aside excessive verdicts, than, on account of such

difficulty, to require parties injured in their feelings by the negligence, the malice, or

wantonness of others, to go without remedy.”). We have held that recognizing that a

plaintiff has “stated a cognizable claim” arising from a novel factual context “for

liability under common law principles of negligence” is not in tension with our judicial

role, nor should recognition of the claim be avoided for prudential reasons, even when

the result of our decision creates liability in a circumstance where none existed

previously. Hart, 332 N.C. at 304, 420 S.E.2d at 177.

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In departing from our historic approach to novel tort claims, the majority

establishes a rule that immunizes physicians from liability for their negligent conduct

any time they fail to administer a treatment that cannot be proven to be effective 50%

of the time or more. See Smith, 361 Or. at 480, 393 P.3d at 1119 (“[A] negligent

medical provider who prevents a patient from having a shot at a 45 percent chance of

a favorable medical outcome need not compensate that patient at all. That patient

bears the entire cost of the negligent conduct, a result that does not spread the risk

of the negligent conduct to the negligent party, although a function of the tort system

is to distribute the risk of injury to or among responsible parties.” (cleaned up)). This

“all or nothing rule is inadequate to advance the fundamental aims of tort law”

because it “does not serve the basic aim of ‘fairly allocating the costs and risks of

human injuries’ ” and also “ ‘fails to deter’ medical negligence because it immunizes

‘whole areas of medical practice from liability.’ ” Matsuyama, 452 Mass. at 13, 890

N.E.2d at 830. This approach is likely to have harmful consequences given that

“[m]uch treatment of diseases is aimed at extending life for brief periods and

improving its quality rather than curing the underlying disease. Much of the

American health care dollar is spent on such treatments, aimed at improving the

odds.” McMackin v. Johnson Cnty. Healthcare Ctr., 73 P.3d 1094, 1099 (Wyo. 2003),

on reh’g, 2004 WY 44, 88 P.3d 491 (Wyo. 2004).

Further, I firmly disagree with the majority’s conclusion that it would be

improper for this Court to recognize the loss of chance doctrine because doing so

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“would require a departure from our traditional common law on proximate causation

and damages . . . [because s]uch a policy judgment is better suited for the legislative

branch of government.” Recognizing loss of chance as a cognizable injury does not

require us to create a new cause of action—the cause of action is the common law

cause of action of negligence. Cf. Hart, 332 N.C. at 305–06, 420 S.E.2d at 178 (“The

defendants, relying on cases from other jurisdictions, say that there is not a common

law negligence claim against a social host for serving alcoholic beverages. . . . Our

answer to this is that we are not recognizing a new claim. We are applying established

negligence principles and under those principles the plaintiffs have stated claims.”).

As we have long held, it is entirely appropriate for this Court to “re-examine our

rule[s] in the light of current conditions [and] the tide of judicial decision elsewhere.”

Rabon, 269 N.C. at 4, 152 S.E.2d at 487.

The majority approvingly quotes the Court of Appeals opinion for the

proposition that “any change in our negligence law lies ‘within the purview of the

legislature and not the courts.’ ” Parkes v. Hermann, 265 N.C. App. 475, 478, 828

S.E.2d 575, 578 (2019) (quoting Curl v. Am. Multimedia, Inc., 187 N.C. App. 649, 656–

57, 654 S.E.2d 76, 81 (2007)). However, “[a]bsent a legislative declaration, this Court

possesses the authority to alter judicially created common law when it deems it

necessary in light of experience and reason.” State v. Freeman, 302 N.C. 591, 594, 276

S.E.2d 450, 452 (1981). Interpreting and applying the common law in no way

arrogates for this Court a function “better suited for the legislative branch of

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government.” See Funk v. United States, 290 U.S. 371, 383 (1933) (“It has been said

so often as to have become axiomatic that the common law is not immutable but

flexible, and by its own principles adapts itself to varying conditions.”). Common law

adjudication is not transformed into impermissible policymaking every time we

“adapt[ ] [the common law] to changing scientific and factual circumstances.” Am.

Elec. Power Co. v. Connecticut, 564 U.S. 410, 423 (2011). Rather, it is how this Court

discharges one of its core judicial functions. See Republican Party of Minnesota v.

White, 536 U.S. 765, 784 (2002) (“[S]tate-court judges possess the power to ‘make’

common law . . . .”). Evolution of the common law through the application of existing

principles in novel circumstances is both appropriate and obligatory because

[o]ne of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice.

Gastonia Pers. Corp. v. Rogers, 276 N.C. 279, 287, 172 S.E.2d 19, 24 (1970) (quoting

State v. Culver, 23 N.J. 495, 129 A.2d 715 (1957)). Thus, it in no way threatens the

separation of powers that “from time to time when this Court has been convinced that

changes in the way society or some of its institutions functioned demanded a change

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in the law, it rejected older rules which the Court itself developed in order that justice

under the law might be better achieved,” even if “[t]hese decisions were sometimes

made in the face of arguments that such changes ought to be made, if at all, by the

legislature.” Mims v. Mims, 305 N.C. 41, 55, 286 S.E.2d 779, 788 (1982).

It is certainly possible that recognizing the loss of chance doctrine would have

consequences for the practice of medicine and the market for health insurance in

North Carolina, both of which are subjects fit for regulation by the legislature. But

the majority’s decision to deny Ms. Parkes the opportunity to recover for her lost

chance of recovery will have policy consequences all the same. Cf. Hans A. Linde,

Courts and Torts: “Public Policy” Without Public Politics?, 28 VAL. U. L. REV. 821, 852

(1994) (“A rule of law is a policy, however it is explained.”). What distinguishes a

permissible judicial adjudication from an impermissible policymaking exercise is not

the existence or nonexistence of attendant policy effects: it is whether or not the

decision is justified by precedent and the reasonable application of legal principles

and methods. While this Court must remain attuned to the real-world consequences

of our decisions, we intrude upon an authority exclusively reserved to the legislature

when we base our decisions on extrinsic policy considerations. Id. at 855 (“[Courts]

must resolve novel issues of liability within a matrix of statutes and tort principles

without claiming public policy for its own decision. Only this preserves the distinction

between the adjudicative and the legislative function.”). For example, I have no doubt

that it would be improper for this Court to resolve Ms. Parkes’ claim based upon our

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own determination that “the benefits of allowing loss of chance damages . . . offset the

detriments of a probable increase in medical malpractice litigation and malpractice

insurance costs.” Fennell v. S. Maryland Hosp. Ctr., Inc., 320 Md. 776, 794, 580 A.2d

206, 215 (1990). But it does not follow that a decision arrived at through the

application of sound legal principles is a “policy judgment” merely because it allows

(or disallows) a claim that, inevitably, will have benefits and detriments when judged

as a matter of policy. Indeed, because our resolution of this case solely involves our

interpretation of the common law, the legislature may choose to override our

judgment by statutory enactment, just as it would have been able to if we had instead

decided to adopt the loss of chance doctrine. Amos v. Oakdale Knitting Co., 331 N.C.

348, 356, 416 S.E.2d 166, 171 (1992) (“[I]f our state legislature has expressed its

intent to supplant the common law with exclusive statutory remedies, then common

law actions . . . will be precluded.”).

Our decision today unnecessarily creates an unjust rule. Because of our

decision, Ms. Parkes and patients like her are denied any opportunity to seek

recompense for the harms caused by the negligent conduct of the medical

professionals to whom they have entrusted their care. It accords with our precedents

and principles to recognize Ms. Parkes’ lost chance of recovery for what it truly was:

a tangible injury caused by defendant’s negligent conduct which is susceptible to

valuation and is redressable in tort law. The fact that advances in medical science

allow researchers to demonstrate that a treatment is 35% (or 49.9%) effective, rather

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than 50.01% effective, is not a reason for denying the sole remedy available to

patients wronged by medical malpractice. In contrast to the majority, I would

recognize that when a physician’s negligent conduct “reduces or eliminates the

patient’s prospects for achieving a more favorable medical outcome, the physician has

harmed the patient” by destroying “something of value, even if the possibility of

recovery was less than even prior to the physician’s tortious conduct.” Matsuyama,

452 Mass. at 3, 890 N.E.2d at 823. I agree with Professor Joseph King, who wrote in

an influential article that

[o]n a more visceral level [ ] the question [is] whether one who loses a not-better-than-even chance of achieving some favorable result, perhaps life, really loses nothing worthy of redress. The loss includes not only the then-existing chance, but also the loss of the opportunity to benefit from potential scientific breakthroughs that could transform the chance into reality. From a psychological standpoint, there is a qualitative difference between a condition that affords a chance of recovery and one that offers no chance at all, as any patient with terminal cancer will confirm. This inherent worth of a chance is added reason for recognizing its loss as a compensable interest.

Joseph H. King Jr., Causation, Valuation, and Chance in Personal Injury Torts

Involving Preexisting Conditions and Future Consequences, 90 Yale L. J. 1353, 1378

(1981). Extending existing common law principles to allow Ms. Parkes’ claim would

serve the predominant goal of tort law by providing a remedy to a “victim of medical

malpractice” who otherwise lacks “any remedy at all if the common law does not

provide one.” Smith, 361 Or. at 478, 393 P.3d at 1118. The Court of Appeals decision

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should be reversed, and Ms. Parkes should be allowed to present her case to a jury.

Therefore, I respectfully dissent.

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