**Introduction**
“The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” *Bigelow et al. v. RKO Radio Pictures, Inc. et al.*, 327 U.S. 251 (1946).
This “most elementary conception of justice” escapes some unfortunate medical negligence victims in Washington State. These are the people who come to medical care with pre-existing conditions and have received negligent care; who should have had diagnostic tests but didn’t; who should have gotten mammograms for suspicious lumps, chest x-rays for pneumonia, eye pressure tests for suspected glaucoma, and neurologic testing for possible stroke.
For these and many other victims, there is little recourse in the law. In many instances, it is precisely because there is no mammogram, no x-ray, no pressure test, and no neurologic testing that the patient’s expert cannot either offer “but for” causation or quantify the percentage chance lost due to the doctor’s negligence.
These are not folks who are saved by our “loss of chance doctrine” first set forth in *Herskovits* (*Herskovits v. Group Health Co-op. of Puget Sound*, 99 Wn.2d 609 (1983)) because quantifying harm is not possible because the test was not done. As a result, claims are not brought, or are brought and discounted heavily in settlement. We should live in a different world, one in which the defendant may not benefit from his or her own negligence.
This article summarizes the state of causation in medical negligence cases in Washington; it surveys other possible options in the country that have come up with solutions for this not uncommon fact pattern; and it suggests a new standard and jury instruction that takes into account the need to allow such victims recourse in the court system, while also allowing defendants to present evidence to defeat causation.
**A brief history of causation in medical negligence cases in Washington**
RCW Chp. 7.70 governs medical negligence claims in Washington, and mandates that claimants prove proximate cause in any such case. RCW 7.70.040(2). However, the chapter is silent with respect to how precisely such causation is proved.
In medical negligence cases where the claimant presents competent expert testimony that the failure of the health care provider more likely than not caused the harm complained of, the jury instructions are fairly straightforward:
WPI 15.01 Proximate Cause – Definition: The term “proximate cause” means a cause which in a direct sequence procedures the injury complained of and without which such injury would not have happened. There may be more than one proximate cause of an injury.
WPI 15.01.01 Proximate Cause – Definition – Alternative: A cause of an injury is a proximate cause if it is related to the injury in two ways: (1) the cause procedure the injury in a direct sequence, and (2) the injury would not have happened in the absence of the cause. There may be more than one proximate cause of an injury.
There are two specific exceptions. First, when the connection between the negligence and the harm is so obvious, such testimony is not necessary. See *Berger v. Sonneland*, 144 Wn. 2d 91 (2001) (technical medical expertise is not required in cases where a physician amputates the wrong limb or pokes a patient in the eye while stitching a wound on the face).
Second, as described first in *Herskovits* and honed in *Mohr*, is when a health care provider’s negligence reduces a patient’s chance of survival or chance of a better outcome.
Washington first recognized a cause of action for the lost chance of a better outcome in *Herskovits* in 1983. That case involved the death of Leslie Herskovits from lung cancer. After his death, his estate brought a lawsuit claiming that defendant Group Health was negligent in its treatment of Mr. Herskovits, and said negligence caused a 14% reduction in chance of his survival. The Court held that such a reduction in survival was actionable, even if the reduction did not rise to the level of “but for” causation.
In *Mohr*, the Supreme Court revisited the issue, adopting the plurality opinion from *Herskovits*, and in particular adopting the lost chance doctrine for cases where the ultimate harm is something less than death.
Of note, the Court left open the question of how a claimant must prove causation. “This reasoning of the Herskovits plurality has largely withstood many of the concerns about the doctrine, particularly because it does not prescribe the specific manner of proving causation in lost chance cases. Rather, it relies on established tort theories of causation, without applying a particular causation test to all lost chance cases. Instead, the loss of a chance is the compensable injury.”
Of note, the *Mohr* Court made an effort to distinguish its support for the plurality opinion in *Herskovits* from the lead opinion. The lead opinion focused on Restatement (Second) of Torts § 323, which is titled “Negligent Performance of Undertaking to Render Services,” and states in relevant part:
“One who undertakes … 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, …”
In rejecting this approach, the *Mohr* court pointed out “the most recent Restatement asserts that the reliance by many courts on § 323 of the Restatement (Second) as support for the doctrine is misplaced. The reporter’s note explains that § 323 addressed affirmative duties, not causation or the nature of injury.”
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 is titled “Factual Cause,” and states:
“Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.”
The comments to §26 describe the way in which some courts have resolved the issue of resorting to a “confusing and misused doctrine” (substantial factor) where proof of the amount of harm caused by the defendant is unknown and public policy favors some form of recovery:
“(instead of using the substantial factor test); courts can state more clearly that so long as the second tortfeasor’s conduct was a but-for cause of some enhanced harm, the burden of proof shifts to that tortfeasor on its magnitude.”
Finally, *Rash v. Providence Health & Servs*., 183 Wn. App 612 (2014) affirmed that in lost chance cases, the plaintiff bears the burden to articulate the particular percentage of the lost chance through expert testimony.
In *Rash*, the plaintiff sought to apply the substantial factor doctrine to satisfy her causation burden as her expert testified that the defendant’s alleged negligence was a substantial factor in accelerating the patient’s death. However, the appellate court found that such testimony must include a quantifiable percentage reduction in the chance of survival or better outcome.
Finally, in *Dunnington v. Virginia Mason Medical Center*, 187 Wn.2d 629 (2017), the plaintiff, Mr. Dunnington, sued a podiatrist for failing to properly diagnose his melanoma, the result of which was a 40% reduction in the chance that the melanoma would not recur. Plaintiff asked the trial court of the substantial factor jury instruction, he was denied, and an appeal to the Supreme Court followed.
The plaintiff argued that sometimes the substantial factor test is appropriate for lost chance cases, and that his case was one of those times. The Supreme Court disagreed.
The Court couched its analysis in whether Mr. Dunnington’s case fit within one of the three exceptions that would allow for a substantial factor instruction as outlined in the case of *Daugert v. Pappas*, 104 Wn. 2d 254 (1985). Ultimately, the Court decided that the facts did not fit one of the exceptions.
**Which victims are excluded from our current medical malpractice causation laws?**
As is clear from this brief recitation of *Herskovits*, *Mohr*, *Rash* and *Dunnington*, case law in Washington simply does not provide for recovery when the plaintiff is unable to present competent expert testimony supporting either but-for causation or a quantifiable loss of a chance of a better outcome because the negligence of the defendant health care provider has made it impossible to do so.
Remember the people who should have gotten mammograms for suspicious lumps? If the facts of those cases are such that oncologists cannot state with reasonable medical probability whether the patient would now be cancer-free if the mammogram were done, or if they lost appreciable chances, those folks are out of luck.
Remember those people who should have gotten chest x-rays to rule out pneumonia? Without the x-ray, a critical care pulmonologist can’t opine, with the requisite certainty, what the outcome would have been had the x-rays been done. Those people are out of luck. The same goes for patients presenting to ERs around our state with acute onset of painful eyes and no pressure tests are done for suspected glaucoma. The same goes for those possible stroke victims who are never properly assessed.
Any time a patient seeks medical care and a health care provider negligently fails to perform a diagnostic test, the chances are good that patient will be unable to recover for the harm that was caused by that failure. It’s as simple as that.
**Solution**
It is clear from *Mohr* and *Rash* what the Supreme Court currently thinks of the substantial factor test in such circumstances, even though it is used to prevent injustices such as the above from occurring. Instead, I suggest a solution that avoids the perils of substantial factor, while at the same time addressing the obvious public policy concerns of allowing this kind of defense:
“A plaintiff in such a situation has the burden to prove that the health care provider fell below the standard of care by failing to order a diagnostic test, and that such failure was a proximate cause ‘but for’ of a loss of a chance of a better outcome. Because the plaintiff cannot meet her burden to quantify what particular lost chance occurred because there is no diagnostic test, the burden then shifts to the defendant to prove to a reasonable degree of medical probability that some portion of the ultimate injury was a result of the pre-existing condition (and not the defendant’s negligence).”
No other jurisdictions in the United States instruct juries quite this way. However, New Jersey and Pennsylvania are substantially similar. The difference is that their courts have not denigrated Restatement of Torts (Second) § 323 to the same extent our courts have.
The law in New Jersey is articulated nicely in *Gardner v. Pawliw*, 696 A. 2d 599 (NJ. Supreme Court, 1997). In *Gardner*, the plaintiff’s high-risk pregnancy was being managed by the defendant obstetrician, and there was an allegation that the defendant failed to perform diagnostic tests, resulting in harm to the fetus.
The *Gardner* Court observed that when the malpractice consists of a failure to perform a diagnostic test, the “very failure to perform the test may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed.” *Id*. at 380.
In such circumstances, the plaintiff only must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition . . . **We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created** (emphasis added).
This is precisely the same reason we need a similar instruction available to certain medical negligence victims in Washington.
**Conclusion**
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**. *Hicks v. United States*, 368 F. 2d 626, 632 (1966).
Washington Courts have not been shy in extending available remedies for tort victims for public policy reasons, including specifically relaxing standard of causation in the context of discrimination and unfair employment practices, and toxic tort cases. Why can’t we arrive at a commonsense solution that protects a subclass of medical negligence victims who are currently denied access to justice because of the very negligence that caused them harm?
Tyler Goldberg-Hoss, EAGLE member, is a partner at Chemnick Moen Greenstreet, which limits its practice to medical negligence claims. He is also active in WSAJ as a Board Member and current Secretary. He would like to particularly thank law student Che Shirmer for help in researching for this article, and George Ahrend for his scholarship in this context.
(This article originally appeared in the June 2018 Trial News, found here: When a Doctor’s Malpractice Prevents Proving Causation.)
