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Can A Healthcare Provider Be Clearly Negligent And Still Avoid Liability?

Posted Friday, December 29, 2017 by Gene Moen

Under Washington law, in order to prevail in a medical negligence case, you must prove two things: a breach of the duty of care and that injury was caused by the breach. If you cannot prove causation, you cannot prevail, no matter how serious the potential injury or damages.

Every medical negligence attorney has reviewed cases where the negligence was clear but where it is impossible to prove that any harm was caused. Examples are a missed cancer diagnosis, but where the delay before the diagnosis occurred is only a few weeks, so that injury from the delay (as opposed to the underlying cancer) cannot be proven. In general, the law requires that any purported harm must be proven with reasonable medical probability. That has been interpreted as requiring proof of likelihood of harm being greater than 50%.

Recent case law in Washington has tried to ease this burden by allowing a lawsuit for “loss of a chance of a better outcome.” In other words, even if you can’t prove that the bad outcome was more likely than not (greater than 50%) the fault of the medical provider, you can prove that a better outcome was 25% more likely (for example) if the duty of care had not been breached.

This is an improvement over the “all or nothing” requirement of more likely than not (greater than 50%), but it leaves a large gap that can be difficult to fill. In order to have a claim for “loss of a chance of a better outcome,” one must be able to produce an expert who can provide the necessary testimony about the percentage loss of a chance. In many cases, especially those involving a negligent delay in diagnosis of a pre-existing medical condition, those figures are impossible to present because the needed evidence is not present due to the provider’s negligence.

Examples are easy to find. An ER physician misses a diagnosis of an epidural spinal abscess, leading to the patient’s later paralysis. The missed diagnosis, in turn, resulted from a failure to do a spinal MRI which likely would have found signs of the infection. But without evidence of the size or location of the abscess that would have been found in the MRI, a neurologist or neurosurgeon may not be able to state, with reasonable medical probability, that the patient lost “x percent” of a chance of avoiding paralysis. In other words, the physician, by negligently failing to do an MRI, avoided the evidence that may have made him liable for a serious injury.

Another example: a patient presents to her doctor with signs and symptoms of acute glaucoma, but the doctor fails to do a simple pressure test to diagnose the condition. A day later, the glaucoma is diagnosed and the patient has permanent vision loss. An expert is unable to provide testimony about the “loss of a chance of a better outcome” because that could only be based on comparing the pressure on the day it was missed with the pressure at the time of diagnosis. The doctor is clearly negligent, but because of his negligence the element of causation cannot be proven.

Plaintiffs’ attorneys are working to come up with a different way of approaching this problem. In some states. liability can be found if the negligence was a “substantial factor” in producing the harm. It is clearly unjust that a doctor can be negligent, but the causation burden cannot be met because of the negligence. Hopefully, case law will be developed over the coming years that allows this injustice to be avoided.

Chemnick | Moen | Greenstreet
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