Smith v. State, Dept. of Health and Hospitals

• Decision Date: 25 June 1996
• Citation: 676 So.2d 543
• Parties: 95-0038 La
• Court: Louisiana Supreme Court

Page 543

676 So.2d 543

95-0038 La. 6/25/96

Rachel SMITH et al. v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.

No. 95-C-0038.

Supreme Court of Louisiana.

June 25, 1996.

Rehearing Denied Sept. 3, 1996.

Oscar L. Shoenfelt, III, Marjorie Ann McKeithen, Moore, Walters & Shoenfelt, for Applicant.

Gordon L. James, Jan Peter Christiansen, Hudson, Potts & Bernstein, for Respondent.

Stewart Earl Niles, Jr., Patricia Anne Bethancourt, Counsel for Louisiana Medical Mutual Ins. Co., and LAMMICO amicus curiae.

Lawrence S. Kullman, Troy E. Bain, for Louisiana Trial Lawyers Association amicus curiae.

[95-0038 La. 1] LEMMON, Justice ^*

On several occasions, this court has recognized the right to recover damages in medical malpractice cases for the loss of a chance of survival. Hastings v. Baton Rouge Gen Hosp., 498 So.2d 713 (La.1986); Smith v. State Through Dept. of Health & Human Resources Admin., 523 So.2d 815 (La.1988) and Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991). In Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112, p. 4 (La. 7/5/94), 639 So.2d 216, 219 n. 4, we noted that this court has not yet addressed the method of valuation of the damages recoverable for the loss of a chance of survival. We granted certiorari in the instant medical malpractice case to address that issue.

[95-0038 La. 2] I

In August 1987, Benjamin Smith went to E.A. Conway Memorial Hospital, complaining of a sore on top of his right foot. The attending physician diagnosed cellulitis with lymphangitis, and Smith underwent minor surgery to drain the fluid from his foot.

Smith's five-day hospitalization included a routine chest x-ray which the staff radiologist reported as showing "a mediastinal mass projected to the right of the trachea." The doctor stated that "lymphoma must be considered in the differential diagnosis" and recommended a CT scan of the thoracic area. The hospital staff failed to inform Smith or his family of the x-ray results or to recommend further testing. Smith was simply discharged from the hospital without any information about the mass in his chest.

Almost fifteen months later, Smith returned to E.A. Conway, complaining of a three-week history of "left pleuritic chest pain, fever, and chills." A second chest x-ray on October 31, 1988, compared with the August 1987 x-ray, revealed that the mass had doubled in size. Smith and his family then learned for the first time of the August 1987 x-ray report.

Further testing confirmed the diagnosis of small cell carcinoma of the lungs, a fast-acting and lethal cancer. By this time, Smith's cancer had progressed to the "extensive" stage, in that the cancer was present in both lungs and was non-operable. ¹ Despite aggressive drug treatment and chemotherapy, Smith died on March 16, 1989, nineteen months after the initial x-ray. He was forty-five years old at his death.

Smith's wife and their two minor children petitioned for a medical review [95-0038 La. 3] panel. The Louisiana Department of Health and Hospitals, which operated E.A. Conway Hospital, stipulated to its breach of the standard of care and waived the panel. In the stipulation, the Department "admit[ted] that its employees and/or physicians for whom it is responsible pursuant to La.Rev.Stat. 40:1299.39 were at fault and breached the standard of reasonable care in failing to render follow-up testing and/or treatment in connection with the x-ray of August 14, 1987." However, the Department expressly reserved the right to contest causation and damages. This action followed, seeking both survival and wrongful death damages. ²

The Department answered, reiterating its stipulation that its employees and physicians had breached the standard of care for medical treatment under the circumstances, but contesting whether the delay in treatment had caused any damages. Alternatively, the Department asserted that if the delay in treatment caused any diminution in Smith's reasonable life expectancy, then only a reduced amount of the normal survival and wrongful death damages should be awarded.

At trial, the parties presented evidence by several doctors relating to the percentage chance of survival for certain periods of time after discovery of small cell carcinoma of the lung at various stages of progression of the disease. The trial court ruled that plaintiffs had not met their burden of proving that the fifteen-month delay in treatment resulting from the State's admitted negligence had caused Smith to die or to lose a chance of survival. The judge noted that Smith actually "lived his expected life span" after the 1987 x-ray, referring to the estimated length of time Smith would have been expected to survive, according to statistical averages, if he had received treatment immediately after the x-ray. Accordingly, the judge [95-0038 La. 4] dismissed plaintiffs' action.

The court of appeal reversed, concluding that the trial court was plainly wrong in failing to find the loss of a chance of survival. 26,280 (La.App. 2d Cir. 12/9/94), 647 So.2d 653. Although Smith arguably lived without treatment as long as the average life span of a patient who underwent treatment, the court stated that every expert testified Smith had lost some chance of surviving the disease because of the Department's negligence. Supported by excellent analytical reasoning, the court held that plaintiffs were entitled to recover damages for Smith's loss of a chance of survival.

As to the method of measuring those damages, the intermediate court rejected plaintiffs' contention that they were entitled to full damages for the death, noting that plaintiffs failed to prove, more probably than not, that Smith would have survived but for the Department's malpractice. Drawing heavily on Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981), the court reasoned that granting recovery upon lesser proof than the more-probable-than-not rule should be balanced by a concomitant reduction of the potential damages for a case where the tort victim's death probably would not have occurred but for the defendant's fault. However, the court pointed out that the plaintiff in a loss of a chance of survival case still retains the burden of proving by a preponderance of the evidence that the defendant's negligence caused the loss of a chance.

Accordingly, the court held that "the percentage probability of loss, if less than 50%, is the proper measure of the plaintiff's damages in a case of wrongful death due to medical malpractice." 26,280, p. 11, 647 So.2d at 662. Referring to expert evidence that recurrence of cancer after five years is rare, the court then [95-0038 La. 5] reviewed other expert testimony as to the chance of survival for five years. Four doctors testified that the chance of survival, at the stage of the disease when the initial x-ray was taken, was one to twelve percent, ten to fifteen percent, five percent, and seven to twenty-five percent respectively. ³ The experts further agreed that Smith's chance of survival at the time of the October 1988 x-ray was less than one percent. Analyzing this evidence de novo, the court concluded that the evidence preponderated to show that the Department's negligence was a substantial factor in depriving Smith of a ten percent chance of surviving for five years. Fixing the total damages at $764,347, ⁴ the court reduced this amount proportionate to the lost ten percent chance of survival and awarded a total of $76,434 to Mrs. Smith and her two minor children.

On plaintiffs' application, we granted certiorari, primarily to address the method of measuring the damages caused by the deprivation of a chance of survival of less than fifty percent. 95-0038 (La. 3/10/95); 650 So.2d 1167.

II

The court of appeal was correct in holding that plaintiff proved by a preponderance of the evidence that the negligence of the Department's physicians and employees deprived Smith of a chance of survival, a loss for which the Department must respond in damages. Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986). The court of appeal was also correct in holding that the [95-0038 La. 6] plaintiffs were not required to prove a "reasonable" or "substantial" chance of survival. The issues in loss of a chance of survival cases are whether the tort victim lost any chance of survival because of the defendant's negligence ⁵ and the value of that loss. The question of degree may be pertinent to the issue of whether the defendant's negligence caused or contributed to the loss, but such a tort-caused loss in any degree is compensable in damages. ⁶

Allowing recovery for the loss of a chance of survival is not, as the court of appeal suggested, a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such recovery is a recognition of the loss of a chance of survival as a distinct compensable injury caused by the defendant's negligence, to be distinguished from the loss of life in wrongful death cases, and there is no variance from the usual burden in proving that distinct loss.

Thus, in a medical malpractice case ⁷ seeking damages for the loss of a less-than-even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the tortfeasor's action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance, which is the only item of damages at issue in such a case.

[95-0038 La. 7] All experts testified that Smith had some chance of survival if he had been treated immediately after the August 1987 x-ray, and that he had virtually no chance of survival in October 1988 after he went almost fifteen months without...