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At Your Defense: Loss of Chance Expanding Liability in Missed Diagnoses

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000440693.44141.09
At Your Defense

Dr. Reyes is the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of , which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.





A 48-year-old man presents to the emergency department complaining of intermittent nausea and epigastric and right-sided chest pain. An EKG, chest radiograph, and cardiac enzymes are normal, and a GI cocktail relieves his symptoms. He is discharged home with a diagnosis of peptic ulcer disease and chest pain and discharge instructions that contain return precautions and instructions to see his doctor in two days.

One week later, the patient follows up with his primary care doctor, who reviews the ED workup and concurs with the diagnosis; no further tests are ordered. One month later, he experiences similar symptoms that rapidly progress, and he dies. The cause of death is determined to be a 90% occlusion of the left anterior descending coronary artery causing a myocardial infarction.

These were the facts in Logan v. Providence Health System (2012 WL 7992875 [Mich. Cir. Ct.]), in which the court rendered a jury verdict for $1.81 million against the EP and hospital (the primary physician settled prior to trial). But we have to ask, what percentage fault would the Michigan court find for the EP if the primary physician had not settled and was a defendant in the case? Not only did the jury find the EP the proximate (legal) cause of the patient's myocardial infarction that occurred one month after the EP saw the patient, it assigned 80 percent fault to her (and 20 percent fault to the patient).

Because the primary care physician was not a defendant in the case and the court instructed the jury to assign 100 percent of the relative fault to the parties in the case, the jury could not assign any fault to the primary physician. But the primary physician obviously contributed some fault because he saw the patient and had a chance to order tests that could have diagnosed underlying heart disease. What is going on here?

Misdiagnosis that prevents life-saving care is negligence. Under loss of chance theory, an EP may be found negligent if his negligent treatment delayed or prevented a patient from receiving necessary medical care. Typically, a plaintiff attorney pleads loss of chance theory when the physician negligently fails to diagnose a terminal illness, such as cancer, and the patient subsequently dies. What distinguishes loss of chance from traditional negligence is the injury: a patient's lost chance to receive life-saving medical treatment is itself an injury. In traditional negligence, the injury refers to patient harm directly caused by a physician's negligence in treating or diagnosing a medical condition. The lost chance is the injury, so this type of claim is best suited where a medical condition's morbidity and mortality can be accurately calculated (e.g., stages of cancer). Otherwise, expert opinions may become largely arbitrary in determining survivability percentages in most other medical conditions.

Another distinguishing feature between traditional negligence and loss of chance is the threshold for the plaintiff to recover for damages. Under traditional negligence, a plaintiff may recover for damages only if the chance of survival was greater than 50 percent at the time of the injury. Patients with a chance of survival less than 50 percent cannot recover under traditional negligence even if the physician's negligent act resulted in a decreased percentage of survival (the so-called 50 percent all-or-nothing rule). Under loss of chance theory, a plaintiff can recover even if the patient's chance of survival was less than 50 percent at the time of the physician's negligent act.

The majority of states abandoned the 50 percent all-or-nothing rule and adopted some form of loss of chance theory, but state courts vary substantially in the interpretation and application of the loss of chance doctrine. Unfortunately, this variability contributes to creating new ways plaintiff attorneys can find physicians liable in medical malpractice cases.

The first problem is that loss of chance relaxes the causation standard. The court in Logan did not refer to loss of chance as a theory, but the rationale in the plaintiff attorney's pleading states, “Had the standards of care been complied with, the death sustained by Melvin Logan would have been avoided and he would have survived without significant morbidity. ... Mr. Logan would have been treated with medications and/or surgery and his death would have been prevented.”

I would contend that the primary care physician's negligence is a superseding cause of the patient's injury and cuts off the EP's liability as a proximate cause of the patient's injury. The patient went to his primary doctor, who had the opportunity to assess him and order an outpatient stress test. The EP's diagnosis was gastritis and chest pain, “NOS.” She even provided return precautions for cardiac ischemia.

Here is what happened in Logan: the plaintiff attorney utilized a loss of chance rationale to relax the causation standard in asserting the EP's proximate liability. Michigan does not recognize loss of chance doctrine, but the plaintiff attorney got around this by asserting that the EP's misdiagnosis had a more than 50 percent likelihood of causing the patient's injury (i.e., he pleaded traditional negligence).

The second problem is that loss of chance can be applied even if the patient does not die. In Mohr v. Grantham (172 Wash.2d 844), Mrs. Mohr came in by ambulance after a hypoglycemic episode caused her to drive her car into a pole at 45 m.p.h. The EP ordered a non-contrast head CT, which was read as negative. The court's opinion indicated she was “wobbly on her feet” and “could not walk herself to or from the car and had to be carried to bed by her husband” when she got home, while the EP indicated she was ambulatory in the ED. The EP provided verbal return precautions, but did not give printed head injury discharge instructions.

The next evening, she returned to the ED after experiencing increased lethargy, headache, and nausea, and a second head CT revealed a right middle cerebral infarct, which was confirmed by MRI. Mrs. Mohr was admitted, but was not offered anticoagulants. An inpatient CT angiogram done seven and a half hours after arrival confirmed a traumatic carotid dissection.

The plaintiff contended that the treating physicians were negligent for depriving her of the lost chance for preventing the stroke when the carotid dissection was not diagnosed during the first visit, and she was not offered admission to monitoring for such complications. The trial court granted summary judgment in favor of defendant physicians, but the Supreme Court of Washington reversed the summary judgment on appeal and remanded the case to trial court. The Supreme Court of Washington reasoned that lost chance doctrine applies not only when the patient dies but also when any serious injury, short of death, could have been avoided.

The take-home points from Mohr are to provide detailed discharge instructions for head injury when appropriate. Documenting neurologic assessments for head-injured patients at time of discharge demonstrates a high level of care, and allows you to consider additional testing should your exam alert you to concerning symptoms (persisting pain, weakness, confusion). EPs should observe head-injured patients with concerning mechanisms if any neurologic symptoms persist or develop, and obtain neurologic consults for acute stroke presentations.

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