Crosby v. U.S.
| Decision Date | 09 April 1999 |
| Docket Number | No. A95-359 CV JWS.,A95-359 CV JWS. |
| Citation | 48 F.Supp.2d 924 |
| Parties | Margaret CROSBY, individually and as personal representative of the Estate of Robert Crosby, deceased, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Alaska |
Michael W. Flanigan, Walther & Flanigan, Anchorage, AK, for Crosby, Margaret M.
Kenneth S. Roosa, U.S. Attorney's Office, Anchorage, AK, for United States of America.
[Re: Motion to Dismiss — Docket 100]
At docket 100, defendant United States of America ("United States") moves to dismiss plaintiff Margaret Crosby's ("Crosby") claim for loss of chance.1 Crosby opposes the motion. Earlier, this court certified the relevant questions of law to the Alaska Supreme Court, which declined to accept certification.2 On return from the Alaska Supreme Court, the parties adopted their original motion papers. Oral argument was heard on April 9, 1999.
This is a medical malpractice case filed under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA" or "Act"). Robert Crosby suffered a heart attack on March 7, 1992, while working for a government contractor, Piquniq Management Corporation ("Piquniq"), on Amchitka Island where Piquniq maintained two camps for the United States Navy. Robert died on May 14, 1992, in Oregon while awaiting a heart transplant. Crosby's complaint alleges medical malpractice proximately caused Robert's death or, "in the alternative, the lessening of the likelihood of Robert Crosby's survival from his heart attack."3 The United States argues that under Alaska law, Crosby may not recover for "loss of chance."
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim should only be dismissed if "it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief."4 A dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."5 In reviewing a Rule 12(b)(6) motion to dismiss, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party."6 The court is not required to accept every conclusion asserted in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff."7
This court must decide whether a claim for "loss of chance" may be maintained in a medical malpractice action under Alaska law. There is no reported Alaska decision on point.8 This court must predict how it thinks the Alaska Supreme Court would decide the question.
Stated broadly, the "loss of chance" doctrine in medical malpractice actions permits plaintiffs to recover damages for the reduction in the odds of recovery attributable to a defendant, even if the failure to recover cannot be shown to have been proximately caused by the defendant's negligence.9 Proximate cause, of course, includes both cause in fact and legal cause. Cause in fact traditionally requires proof by a preponderance of evidence. Plaintiffs must establish that their injury was more likely than not caused by the defendant's negligence. Failing such proof, traditional concepts preclude a plaintiff from recovering. Speaking generally, the loss of chance doctrine permits some recovery even if the plaintiff cannot establish cause in fact by a preponderance of the evidence, so long as plaintiff can establish that defendant's negligence reduced the chance of recovery from the injury or illness.
Most courts and commentators analyzing "loss of chance" theories group them in three general categories.10 The "substantial factor" standard permits plaintiffs to recover by showing that there was a substantial possibility or chance of a better outcome. It is not necessary to establish that the defendant's negligence more likely than not caused the injury. It is only necessary to establish that the defendant's negligence was a substantial factor in causing the injury. The Restatement standard permits plaintiffs to recover when they can establish that a defendant's negligence increased the risk of harm by any degree. It is based on Restatement (Second) of Torts, Section 323 which provides:
§ 323 Negligent Performance of Undertaking to Render Services
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, or
(b) the harm is suffered because of the other's reliance upon the undertaking.11
Under the Restatement standard, any percentage of loss can create a jury question.12 There is no need for a finding that the alleged negligence substantially increased the risk of harm. The third standard is the "pure loss of chance" standard. Under the "pure" standard, plaintiffs may recover for the loss of chance, itself, and not the ultimate injury. The "pure" standard therefore creates a new cause of action. Depending on one's perspective, the "loss of chance" doctrine seeks to ameliorate the harsh result of applying rigidcausation principles by allowing plaintiffs to recover for some percentage of injuries caused by a defendant, or the doctrine represents an unwise departure from traditional negligence concepts and introduces a measure of speculative uncertainty into medical malpractice lawsuits which will increase health care providers' incentives to employ tests and procedures deemed necessary to avoid malpractice claims, rather than to select tests and procedures through the exercise of sound medical and surgical judgment
A rough count reveals that a majority of jurisdictions recognize some form of a "loss of chance" theory, with 22 states recognizing the doctrine to some degree, 12 states rejecting its application, and 3 states undecided. Courts in Alabama, Arizona, Arkansas, Colorado, Georgia, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Montana, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, West Virginia, Washington, Virginia, and a United States District Court in Vermont have recognized claims based on "loss of chance" theories.13 However, it is important to emphasize that courts have not always recognized the same principles to govern "loss of chance" theories.14 Courts in Delaware, Florida Idaho, Kentucky, Maryland, Minnesota, Mississippi, New Hampshire, South Carolina, Tennessee, Texas, and Utah have refused to recognize "loss of chance" theories.15 Courts in California, Illinois, and Missouri have reached conflicting results.16
Because "loss of chance" takes on different forms and may apply different principles, there is considerable confusion among courts and commentators as to whether "loss of chance" is recognized by a majority or a minority of jurisdictions. Some commentators maintain that the majority of jurisdictions have rejected the "loss of chance" doctrine.17 Other courts or commentators have concluded that a clear majority of jurisdictions have adopted the "loss of chance" doctrine.18 For present purposes, this confusion is noted to emphasize that the "loss of chance" doctrine resists precise definition and is subject to varying interpretations and different applications.
Traditional causation principles require plaintiffs to establish that a defendant's alleged malpractice was more likely than not the cause of injury. Permitting a plaintiff to recover in a malpractice claim where this standard cannot be met raises a direct conflict with recognized causation principles, and unless the doctrine were expanded to include others such as lawyers, real estate brokers, engineers, etc., would create an anomaly placing health care providers at a disadvantage when compared to other professionals. Moreover, the doctrine's adoption will increase claims and likely induce another medical malpractice insurance crisis. The "loss of chance" doctrine invites juries to speculate. One commentator summarizes the primary arguments opposing the "loss of chance" doctrine as follows:
1. Health care providers may be liable for non-negligent errors of judgment if patients don't improve.
2. More cases would be filed because there is always a chance of a better outcome.
3. Increased litigation would increase malpractice premiums and consumers will ultimately bear the increased costs.
4. "Loss of chance" creates a rebuttable presumption which performs much like a strict liability standard.
5. Medicine is not an exact science and it is impractical to require the medical profession to act as such.
6. The standard allows plaintiffs to recover even though they have little proof.
7. The tort system was never intended to compensate for every injury.
8. "Loss of chance" may not be a deterrent to negligence. There is little value in extracting a penalty from a party if it cannot be shown that the party in fact caused the result.
9. It is improper to assume that health care providers will not provide good treatment to the critically ill.
10. There will be excessive reliance on statistics at the causation stage. This is problematic since statistics are often unreliable and can mislead and be manipulated.
11. Significant changes in tort law should be left to legislatures.
12. Relaxing the standards of causation merely increases the plaintiffs odds of receiving all-or-nothing but provides no greater justice.
13. The three guiding...
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Doe v. Forrest
...be held, data collected, and competing interests heard before a wise decision is reached." Id. at ? 14 (quoting Crosby v. United States, 48 F.Supp.2d 924, 931 (D.Alaska 1999)). I submit that prudence dictates a similarly cautious approach here, where the issues are even more complex, the ra......
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Mohr v. Grantham
...would still have to establish the loss of chance by a preponderance of the evidence,” as the plaintiff argued in Crosby v. United States, 48 F.Supp.2d 924, 931 (D.Alaska 1999), is not an acceptable excuse because it leads to unacceptable results. As the court in Crosby correctly responded, ......
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Doe v. Forrest, 2004 VT 37 (VT 5/7/2004)
...be held, data collected, and competing interests heard before a wise decision is reached." Id. at 14 (quoting Crosby v. United States, 48 F. Supp. 2d 924, 931 (D. Alaska 1999)). I submit that prudence dictates a similarly cautious approach here, where the issues are even more complex, the r......
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Jorgenson v. Vener
...particularly ill-suited to a state like Alaska where medical care must be delivered in remote locations...." See Crosby v. United States, 48 F.Supp.2d 924, 932 (D.Alaska 1999) (listing the advantages and disadvantages of the lost chance [¶ 39.] Deciding whether to widely expand liability ag......
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Year in Review 1999: Cases from Alaska Supreme Court, Alaska Court of Appeals, U.s. Court of Appeals for the Ninth Circuit, and U.s. District Court for the District of Alaska
...offer). [1266] 190 F.3d 959 (9th Cir. 1999). [1267]See id. at 963. [1268]See id. at 961. [1269]See id. [1270]See id. at 962. [1271] 48 F. Supp. 2d 924 (D. Alaska 1999). [1272]See id. at 931. [1273]See id. at 925. [1274]See id. at 931-32. [1275] 984 P.2d 515 (Alaska 1999). [1276]See id. at 5......