Roberts v. Ohio Permanente Med. Group, Inc.

Citation668 N.E.2d 480,76 Ohio St.3d 483
Decision Date28 August 1996
Docket NumberNo. 95-1042,95-1042
Parties, 65 USLW 2183 ROBERTS, Appellant, v. OHIO PERMANENTE MEDICAL GROUP, INC., et al., Appellees.
CourtUnited States State Supreme Court of Ohio

SYLLABUS BY THE COURT

1. In order to maintain an action for the loss of a less-than-even chance of recovery or survival, the plaintiff must present expert medical testimony showing that the health care provider's negligent act or omission increased the risk of harm to the plaintiff. It then becomes a jury question as to whether the defendant's negligence was a cause of the plaintiff's injury or death. (Cooper v. Sisters of Charity of Cincinnati, Inc. [1971], 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97, overruled.)

2. The amount of damages recoverable by a plaintiff in a loss-of-chance case equals the total sum of damages for the underlying injury or death assessed from the date of the negligent act or omission multiplied by the percentage of the lost chance.

3. To ascertain the amount of damages in a case of lost chance of survival or recovery, the trial court must instruct the trier of fact to consider the expert testimony presented and (1) determine the total amount of damages from the date of the alleged negligent act or omission, including but not limited to lost earnings and loss of consortium; (2) ascertain the percentage of the patient's lost chance of survival or recovery; and (3) multiply that percentage by the total amount of damages.

On October 26, 1992, plaintiff-appellant, Joan Roberts, executor of the estate of Elaine E. Thomas, filed a wrongful death suit against defendants-appellees, Ohio Permanente Medical Group, Inc., Dipti Shah, M.D., Akron City Hospital and others, for failure to timely diagnose and treat Thomas's lung cancer. 1 Plaintiff alleged that defendants were negligent in causing a seventeen-month delay in the diagnosis and treatment of lung cancer. An amended complaint added claims for loss of support, services, society and prospective inheritance.

Defendants filed motions for summary judgment and the parties stipulated that, based upon plaintiff's expert witness, plaintiff's decedent would have had a twenty-eight percent chance of survival had proper and timely care been rendered. Based upon this figure, defendants argued that summary judgment was warranted since plaintiff failed to establish that defendants' negligence had, in probability, proximately caused decedent's death. Plaintiff, however, relying in part on the loss-of-chance theory of recovery, argued that she had established a triable issue of fact by presenting evidence that defendants' negligence decreased decedent's chance of survival from twenty-eight percent to zero. The trial court rejected plaintiff's argument and granted defendants' summary judgment motions on authority of Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97. The court of appeals affirmed.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

A. William Zavarello Co., L.P.A., A. William Zavarello, Akron, for appellant.

Gallagher, Sharp, Fulton & Norman, Beverly A. Harris and Jay Clinton Rice, Cleveland, for appellees Ohio Permanente Medical Group, Inc. and Dipti Shah, M.D. Roetzel & Andress, Richard R. Strong and Marlene L. Franklin, Akron, for appellee Akron City Hospital.

Dinsmore & Shohl, Stephen K. Shaw and Sara Simrall Rorer, Cincinnati, urging affirmance for amicus curiae, Ohio Association of Civil Trial Attorneys.

Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., and Janis L. Small, Cleveland, urging affirmance for amicus curiae, Defense Research Institute.

Bricker & Eckler, James J. Hughes, Jr. and Catherine M. Ballard, Columbus, urging affirmance for amicus curiae, Ohio Hospital Association and Ohio State Medical Association.

Spangenberg, Shibley, Lancione & Liber, John G. Lancione and Pamela Pantages, Cleveland, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

FRANCIS E. SWEENEY, Sr., Justice.

The issue presented in this case is whether Ohio should recognize a claim for loss of chance in a wrongful death action where the decedent had a less than fifty-percent chance of survival. For the following reasons, we answer this question in the affirmative.

I Overview of Loss-of-Chance Theory

In medical malpractice cases, the general rule is that the plaintiff must prove causation through medical expert testimony in terms of probability to establish that the injury was, more likely than not, caused by the defendant's negligence. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 28 OBR 429, 504 N.E.2d 44. However, the "loss of chance" theory, which compensates an injured plaintiff for his or her diminished chance of recovery or survival, provides an exception to the traditionally strict standard of proving causation in a medical malpractice action. Instead of being required to prove with reasonable probability that defendant's tortious conduct proximately caused injury or death, the plaintiff, who was already suffering from some disease or disorder at the time the malpractice occurred, can recover for his or her "lost chance" even though the possibility of survival or recovery is less than probable. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas (1992), 44 Baylor L.Rev. 759, 760.

The rationale underlying the loss-of-chance theory is that traditional notions of proximate causation may unjustly deprive a plaintiff of recovery in certain cases even where the physician is blatantly at fault; thus, the requirement of proving causation is relaxed to permit recovery. As explained by one court, when a patient is deprived of a chance for recovery, "the health care professional should not be allowed to come in after the fact and allege that the result was inevitable inasmuch as that person put the patient's chance beyond the possibility of realization. Health care providers should not be given the benefit of the uncertainty created by their own negligent conduct. To hold otherwise would in effect allow [health] care providers to evade liability for their negligent actions or in actions * * *." McKellips v. St. Francis Hosp., Inc. (Okla.1987), 741 P.2d 467, 474.

The loss-of-chance theory has its early roots in the decision of Hicks v. United States (C.A.4, 1966), 368 F.2d 626. In Hicks, the plaintiff's decedent died from an obstruction of the intestine after being misdiagnosed as suffering from gastroenteritis. Expert testimony established that the decedent would have survived given proper treatment. The defendant argued that proximate causation was not established because it was speculative that surgery would have saved the patient's life. The court, in finding that plaintiff had proved proximate causation, stated the following:

"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. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly." (Emphasis added.) Id. at 632.

In addition to the "substantial possibility" rule of Hicks, which permits recovery even where there is only a substantial possibility that the result would have been avoided but for the tortious conduct, a number of jurisdictions that have adopted the loss-of-chance theory rely upon 2 Restatement of the Law 2d, Torts (1965), Section 323. This provision provides:

"One who undertakes, gratuitously or for consideration, 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 * * *."

Most of the courts that apply Section 323 hold that once the plaintiff proves that the defendant has increased the risk of harm by depriving the patient of a chance to recover, the case can go to the jury on the issue of causation regardless of whether the plaintiff could prove to a degree of medical probability that the defendant caused the patient's injury or death. See, e.g., Hamil v. Bashline (1978), 481 Pa. 256, 273, 392 A.2d 1280, 1288; Herskovits v. Group Health Coop. of Puget Sound (1983), 99 Wash.2d 609, 664 P.2d 474. Although the plaintiff still has the burden of persuading the jury by a preponderance of the evidence that defendant brought about the harm plaintiff has suffered, the jury, rather than the medical expert, is given the task of balancing probabilities. Hamil, 481 Pa. at 273, 392 A.2d at 1288.

II Application of Loss-of-Chance Theory in Ohio: Cooper v. Sisters of Charity of Cincinnati, Inc.

In Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97, Ohio rejected the loss-of-chance theory in favor of adhering to the traditional standard of causation, which requires proof, in terms of probability, that defendant's conduct proximately caused plaintiff's injuries or death.

In Cooper, the plaintiff's decedent was struck by a truck while riding a bicycle. He went to the emergency room, where he complained of a headache and vomited. The physician failed to diagnose a fractured skull and instead released the boy, who died the next day from intracranial hemorrhaging. According to plaintiff's expert, the decedent...

To continue reading

Request your trial
124 cases
  • Gardner v. Pawliw
    • United States
    • United States State Supreme Court (New Jersey)
    • 14 d1 Julho d1 1997
    ...686 P.2d 149, 159-60 (1984); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824, 827-28 (1985); Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480, 482-84 (1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 475 (Okla.1987); Hamil v. Bashline, 481 Pa. 256......
  • Weymers v. Khera, Docket No. 102961
    • United States
    • Supreme Court of Michigan
    • 17 d2 Junho d2 1997
    ...what it proclaimed "the traditionally harsh view" and adopted the loss-of-chance theory. Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St.3d 483, 488, 668 N.E.2d 480 (1996). 36 It A patient who seeks medical assistance from a professional caregiver has the right to expect proper c......
  • Dormaier v. Columbia Basin Anesthesia, P.L.L.C. (In re Estate of Dormaier), s. 30864–2–III, 30864–1–III.
    • United States
    • Court of Appeals of Washington
    • 14 d4 Novembro d4 2013
    ...with the trial court that the plaintiff did not need to expressly plead a lost chance injury. In Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480 (1996), the Ohio Supreme Court concluded recovery for a lost chance of survival was viable where the plaintiff p......
  • Matsuyama v. Birnbaum, SJC-09964.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 23 d3 Julho d3 2008
    ...of chance and not for an arbitrary amount awarded by the jury or for the total damages sustained"); Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 489, 668 N.E.2d 480 (1996) (proportional damages approach "provides an equitable method of apportioning damages consistent with......
  • Request a trial to view additional results
2 books & journal articles
  • Negligence Without Harm
    • United States
    • Georgetown Law Journal No. 111-2, December 2022
    • 1 d4 Dezembro d4 2022
    ...271, 296 (1999). 44. See Goldberg & Zipursky, supra note 20, at 1656–60. 45. See, e.g. , Roberts v. Ohio Permanente Med. Grp., Inc., 668 N.E.2d 480, 484–85 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476–77 (Okla. 1987). 46. See Goldberg & Zipursky, supra note 20, at ......
  • Is risk a harm?
    • United States
    • University of Pennsylvania Law Review Vol. 151 No. 3, January 2003
    • 1 d3 Janeiro d3 2003
    ...for future asbestosis claims against the bankrupt when it approved the final plan of reorganization. Id. (citations omitted). (62) 668 N.E.2d 480, 481 (Ohio (63) Id. at 484. (64) Id. (65) Id. (citations omitted). (66) PROSSER & KEETON, supra note 4, [section] 41; see also RESTATEMENT (S......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT