The Loss of Chance Theory Has Lost Again—How to Do it Right with Medical Treatises
posted on March 2nd, 2009 in Summary Judgment, Causation, Treatises, Experts, Loss of Chance, Ipsi Dixit, Daubert, McDaniel v. CSX, Medical Probability by clintI am constantly amazed at how good lawyers navigate through the treacherous maze of malpractice litigation by finding good clients, pleading properly, engaging in productive discovery, retaining competent experts, then suddenly stumbling into that trap door of summary judgment due to a few misplaced words. We read about it periodically and say to ourselves proudly, “Well, that wouldn’t happen to me.” The truth is that it can happen to you. It happens to good lawyers every day. I chose devote this issue to a recent opinion about the “loss of chance” theory,” where the monetary stakes are high and the legal hurdles are even higher. I hope this primer on the “loss of chance” theory will serve as a reminder. Good investigative work into medical treatises—with legal standards in mind—before filing suit is essential to success after filing suit. The old proverb says “What’s well begun is half done.” The following case serves as a omen, in my opinion, of what happens when medical treatises are not the polestar in a loss of chance case when it should be.
In Lockard v. Bratton, 2009 WL 275783 (Tenn.Ct.App.), the Appellant presented to the Hospital ER via ambulance, after passing out at her home. Appellant reported being six to eight weeks pregnant, complaining of abdominal pain and mild vaginal bleeding. The twenty-eight year old Appellant had experienced at least three spontaneous miscarriages prior to this episode and had never been able to achieve the live birth of a child. In the ER, Appellant was evaluated and underwent an OB ultrasound, which was read by Dr. Green, a radiologist. According to his Radiology Report, the ultrasound revealed “no evidence of intrauterine pregnancy or ectopic pregnancy;” thus his impression was that an “apparent complete spontaneous abortion” had occurred. Dr.Bratton, a general surgeon, took over the Appellant’s care. A repeat pelvic ultrasound was performed. Dr. Green’s Radiology Report stated there was definitely a left adnexal ectopic pregnancy. His final impression was a “left adenexal ectopic pregnancy, most likely left ovarian, with associated pelvic hemorrhage.” Dr. Bratton then recommended surgery for the ectopic pregnancy. Dr. Bratton checked the Appellant’s fallopian tubes. He could not identify an exact source of the ectopic pregnancy. It appeared to be in the left fallopian tube which coincided with the pre-operative ultrasound. The left fallopian tube was removed and opened, but no gestational sac could be identified. According to a later Pathology Report, the left fallopian tube was found to have features compatible with salpingitis isthmica nodosa, which can make the fallopian tube bulge and appear like a tube that has an ectopic pregnancy. Upon finding the left fallopian tube did not contain the ectopic pregnancy, Dr. Bratton rechecked the right tube, and after removing adhesions, was able to identify the ectopic pregnancy in the right fallopian tube. The ectopic pregnancy was removed and the right tube preserved for possible future fertility.
The Appellant filed a medical malpractice action against Dr. Bratton alleging that as a direct and proximate result of the negligence of Dr. Bratton, she had a severely diminished chance of future pregnancy. Dr. Bratton filed a Motion for Summary Judgment arguing the Appellant’s causation opinions failed to meet the burden mandated by TENN. CODE ANN. § 29-26-115. The trial court granted summary judgment on causation. The critical issue on appeal, as in all loss of chance cases, was causation. See Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1992). The Appellant had sought recovery for a “severely diminished chance of future pregnancy.” Appellant contended she could prove that (1) she had a better than fifty percent chance of a favorable outcome prior to the negligence act or omission, and (2) she had a less than fifty percent chance of a favorable outcome after the negligent act or omission.
The Court of Appeals began its analysis with the Kilpatrick standard: that the Appellant had to prove she had better than fifty percent chance of becoming pregnant before the removal of her left fallopian tube. Dr. Strickland’s deposition testimony was pivotal. He said that the chance of her becoming pregnant was “prognostically very good,” that her prior pregnancies gave the doctors “a lot of hope,” and that the literature “supports the probability” that she could have conceived from her left fallopian tube had it not been removed. A review of Dr. Strickland’s transcript is essential for understanding why his opinion missed the mark in a loss of chance case:
Q. With regard to assessing Ms. Lockard’s chances of becoming pregnant if Dr. Bratton had done everything that you say he should have done, you would agree with me that you can’t put a number on that, right?
A. I would agree.
Q. And it’s your opinion that nobody can do that, right?
A. I would agree.
Q. No human can put a number on that, right?
A. I said that in my other deposition, yes.
Q. Yes, sir. And you also said that you couldn’t quantify [it] in any way, correct?
A. That’s right.
Q. And you couldn’t say whether more probably than not Ms. Lockard could have gotten pregnant and carried a baby to term if Dr. Bratton had done everything that you say; am I right about that?
A. You’re right. I can’t use that term-I can’t use that phraseology.
Q. And you can’t say whether-if Dr. Bratton had done everything you say he should have done, she had a better than 50 percent chance or less than 50 percent chance of getting pregnant and carrying the baby to term, right?
A. Yeah. That’s a-that’s a form of crude quantification. And I said I can’t quantify it.
Because Dr. Strickland could not state that Appellant had a greater than fifty percent chance of becoming pregnant prior to Dr. Bratton’s negligence, the Court of Appeals affirmed the trial court’s summary judgment.
It is significant to note there was no quantification of the statistics, even though Dr. Strickland mentioned “the literature.” Medical treatises must be the polestar in loss of chance cases. If the literature supported the probability of conception, as Dr. Strickland opines, then why was there no reference to any statistics equivalent to a probability? This error should have been detected before the lawsuit was filed. Maybe, this expert made bold assertions to the Appellant’s lawyer in private and then got wishy-washy at deposition. That misfortune has happened to all of us—ALL OF US. To guard against this misfortune, my suggestion to you is be extremely careful when selecting “loss of chance” cases. Examine the literature before deciding to file suit. The “probability” should be found in the literature. It should be quantified or measured to some extent. Ipse dixit won’t cut it. Perform a meta-search of literature and then get your expert’s opinion. Thus, the expert can be a sounding board for the literature you found. It will get you past a McDaniel hearing and past a Kilpatrick motion. Otherwise, you may spend up to perhaps six figures on a lost chance.