Delaney v. Cade
| Decision Date | 22 April 1994 |
| Docket Number | No. 69355,69355 |
| Citation | 873 P.2d 175,255 Kan. 199 |
| Court | Kansas Supreme Court |
| Parties | , 62 USLW 2682 Julie DELANEY, Plaintiff/Appellant, v. Victor R. CADE, D.O., St. Joseph Memorial Hospital, and Central Kansas Medical Center, Defendants/Appellees. |
Syllabus by the Court
1. The loss of chance of recovery theory in medical malpractice cases applies to two ultimate results: first, the extent to which the alleged malpractice reduced an already injured or ill person's chance of surviving the injury or illness and, second, the extent to which the alleged malpractice reduced an already injured or ill person's chance of a better recovery from the injury or illness.
2. The gravamen of the loss of chance cause of action is negligence and, as in all medical malpractice actions, it is necessary for the plaintiff to prove three elements by a preponderance of the evidence: (1) The physician, or other health care provider, was negligent in the treatment of the patient; (2) the negligence resulted in harm to the patient; and (3) the plaintiff suffered damages.
3. The loss of a chance cause of action, although grounded in negligence, relies upon a lesser or reduced standard of causation than the traditional standard applied in negligence cases.
4. The loss of chance doctrine in a medical malpractice action serves to fairly compensate the plaintiff for the tortious deprivation of an opportunity to live longer or obtain a better recovery from a preexisting injury or illness.
5. In an action to recover for the loss of a chance for a better recovery, the plaintiff must first prove the traditional elements of a medical malpractice action by a preponderance of the evidence. The plaintiff must prove that the defendant was negligent in treating the patient, that the negligence caused harm (the loss of a chance for a better recovery) to the plaintiff and, as a result, the plaintiff suffered damages. In proving that the plaintiff suffered harm, the plaintiff must prove that the lost chance for a better recovery was a substantial loss of the chance.
6. In a medical malpractice action, the extent of the damages recoverable in a lost chance for a better recovery action is limited to the amount attributable to the lost or reduced chance and not the total damages which would include those resulting from the preexisting condition. The defendant is subject to liability only to the extent that the malpractice tortiously contributed to the harm by allowing a preexisting condition to progress or by aggravating or accelerating its harmful effects, or to the extent the malpractice otherwise caused harm in excess of that attributable solely to preexisting conditions.
7. To recover damages for the loss of a chance for a better recovery, the lessened degree of recovery resulting from the medical malpractice must be a substantial one, and a plaintiff cannot recover for a loss of chance that is nothing more than a token or de minimis one.
8. Language from syllabus p 4 and the opinion in Roberson v. Counselman, 235 Kan. 1006, 1020, 686 P.2d 149 (1984), is modified as more fully set forth in this opinion.
Dwight A. Corrin, of Dwight A. Corrin, Chartered, Wichita, argued the cause and was on the brief for appellant.
Robert G. Martin II, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, argued the cause, and Alisa M. Arst, of the same firm, was with him on the brief for appellee Victor Cade.
Brian C. Wright, of Turner and Boisseau, Chartered, Great Bend, argued the cause and was on the brief for appellees St. Joseph Memorial Hosp. and Cent. Kansas Medical Center.
Marta Fisher Linenberger, and Wayne T. Stratton, of Goodell, Stratton, Edmonds & Palmer, Topeka, were on the brief for amici curiae, Kansas Hosp. Ass'n, Kansas Medical Soc., and Kansas Ass'n of Defense Counsel.
John E. Shamberg, Lynn R. Johnson, Victor A. Bergman, David R. Morris, and Steven G. Brown, of Shamberg, Johnson, Bergman & Morris, Chartered, Overland Park, were on the brief for amicus curiae Kansas Trial Lawyers Ass'n.
This case is before the court on questions certified by the United States Court of Appeals for the Tenth Circuit, 986 F.2d 387, pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq.
Chief Judge Stephanie K. Seymour, Circuit Judge presiding, has certified to this court the following questions:
Although the facts of the case are unnecessary for our determination of the legal questions submitted, we deem it advisable to reiterate them as they may be helpful in providing background for a proper understanding of the issues and our resolution of them. The facts, as set forth by the certifying court, read:
At the outset, we point out that the loss of chance of recovery theory in medical malpractice cases applies to two ultimate results: first, the extent to which the alleged malpractice reduced an already injured or ill person's chance of surviving the injury or illness and, second, the extent to which the alleged malpractice reduced an already injured or ill person's chance of a better recovery from the injury or illness. In the first circumstance, the patient fails to survive and the loss suffered is the lost chance of surviving the preexisting injury or illness or at least a lost chance of a substantial increase in the length of such survival. Most of the recorded cases involve factual scenarios in which the patient died when there was a possibility of survival or died sooner than would otherwise have resulted if properly treated. Throughout this opinion such cases will simply be referred to as loss of survival cases. In the second factual circumstance, the patient survives the preexisting injury or illness but fails to make the extent or quality of recovery that might have resulted absent the alleged medical malpractice. We will refer to such cases simply as loss of better recovery cases.
In either event, the gravamen of the cause of action is negligence and, as in all medical malpractice actions, it is necessary for the plaintiff to prove three elements by a preponderance of the evidence: (1) The physician, or other health care provider, was negligent in the treatment of the patient; (2) the negligence resulted in harm to the patient; and (3) the plaintiff suffered damages. Cleveland v. Wong, 237 Kan. 410, 416, 701 P.2d 1301 (1985). Additionally, we note that the loss of chance cause of action was recognized by this court in loss of survival cases nearly 10 years ago. Roberson...
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