Kramer v. Lewisville Memorial Hosp.

Decision Date30 June 1993
Docket NumberNo. D-2680,D-2680
Citation858 S.W.2d 397
PartiesStephen C. KRAMER, Individually, and as Representative of the Estate of Jennie Roland Kramer, Deceased, and as next friend of Geoffrey Kramer and Lyndsey Kramer, minor children, Petitioners, v. LEWISVILLE MEMORIAL HOSPITAL, Respondent.
CourtTexas Supreme Court

PHILLIPS, Chief Justice.

The principal issue presented in this case is whether Texas permits recovery for lost chance of survival or cure in medical malpractice cases; that is, whether there is liability for negligent treatment that decreases a patient's chance of avoiding death or other medical conditions in cases where the adverse result probably would have occurred anyway. We hold that such recovery is not authorized by the Texas Wrongful Death Act, TEX.CIV.PRAC. & REM.CODE §§ 71.002 & 71.004, and should not be permitted under the Texas Survivorship Statute, TEX.CIV.PRAC. & REM.CODE § 71.021, or under a separate common law cause of action. Accordingly, we affirm the judgment of the court of appeals. 831 S.W.2d 46.


Jennie Kramer was the wife of Stephen Kramer and the mother of Geoffrey and Lyndsey Kramer. In August 1985, Ms. Kramer visited Dr. Bruce Eich, her gynecologist, because she was experiencing unusual discharges and intermittent bleeding a few days before and after her menstrual period. Dr. Eich, observing that her cervix was inflamed, diagnosed her condition as a yeast infection. He also performed a pap smear and sent a microscope slide made from the smear to Lewisville Memorial Hospital (the "Hospital") for screening. Cytotechnologist Frances Nightingale, the Hospital's laboratory director, screened the slide and detected no abnormal cells that might indicate cancer. Dr. Richard Burgess, a pathologist employed by the Hospital who was Ms. Nightingale's supervisor, then reviewed the slide as part of the Hospital's quality control program. He also found the slide negative for cancer.

Still suffering from irregular bleeding, Ms. Kramer consulted another doctor, Dr. Michael Burgess, in November 1985. Dr. Burgess was not associated with the Hospital and is apparently unrelated to Dr. Richard Burgess. After conducting various other tests, not including a pap smear, he also diagnosed her condition as normal. Ms. Kramer's bleeding became more severe, however, and in December 1985 she detected a hardening in her cervix. She returned to Dr. Michael Burgess who, in spite of these new developments, concluded that nothing further needed to be done. The following February, after continued episodes of irregular bleeding, Ms. Kramer detected a hard spot in her vagina. She again returned to Dr. Michael Burgess, who performed a cervical biopsy and diagnosed her cancer.

Ms. Kramer was then admitted to the Hospital, where she underwent exploratory surgery in March 1986. She returned to the Hospital on one other occasion, in April, for emergency room treatment of hemorrhaging. She then took radiation treatments and chemotherapy at another hospital under the care of other doctors, who were not sued in this case. The cancer spread to her lungs, however, and she died on October 31, 1986.

Stephen Kramer, individually, as representative of Jennie Kramer's estate, and as next friend of their children, brought suit under the Texas Wrongful Death Act and the Texas Survivorship Statute against Dr. Bruce Eich, Drs. Richard and Michael Burgess, Ms. Frances Nightingale, the Hospital, and other professional medical groups and centers of which the physicians were members. Pursuant to the Medical Liability and Insurance Improvement Act, TEX.REV.CIV.STAT. art. 4590i (Vernon Supp.1993), the Kramers served notice to all defendants of their intention to bring health care liability claims against each of them. All the defendants except the Hospital settled with the Kramers before trial.

Prior to trial, the Kramers amended their petition to allege, under the same facts, a cause of action for the "significant and substantial reduction in the chance of saving" Ms. Kramer's life. As they later explained in oral argument before this Court, the Kramers viewed this cause of action as based solely upon the common law, wholly independent of either the Wrongful Death Act or the Survivorship statute.

At trial, Ms. Nightingale testified that she screened most pap smear slides at home instead of at the Hospital's laboratory, although she did not know whether this was true of Ms. Kramer's slide. Based on her re-examination of the slide, she admitted that her failure to detect abnormal cells in the smear was a mistake in judgment. The Kramers introduced expert opinion testimony that the Hospital was negligent in allowing Ms. Nightingale to screen slides at home rather than at the laboratory.

The Kramers also offered undisputed evidence regarding the International Federation of Gynecology and Obstetrics' five-stage classification system for cervical cancer. Cancer diagnosed as "Stage 0" is limited to the surface of the cervix, and, if detected and treated, has a 100% five-year survival rate. "Stage I" cancer has spread into the tissues of the cervix, and has a 95% survival rate. "Stage II" cancer has spread beyond the cervix, and has a 70% to 80% survival rate. "Stage III" cancer has reached the pelvic wall, and has slightly less than a 50% survival rate. Finally, "Stage IV" cancer has spread to other organs, and has only a 0% to 5% survival rate.

The experts for the Kramers and the Hospital disagreed over the stage of Ms. Kramer's cervical cancer in August 1985, when Ms. Nightingale and Dr. Richard Burgess screened the pap smear. The Kramers' experts testified that while Ms. Kramer was either Stage 0 or Stage I at the time, she was at least Stage III by the time her cancer was diagnosed in February 1986. Two experts for the Hospital conceded that while there was no objective evidence that Ms. Kramer was anything but Stage I in August 1985, retrospective analysis suggested that her cancer could have been as advanced as Stage IV. Thus, the evidence most favorable to the Kramers showed that the Hospital's conduct was a proximate cause of Ms. Kramer's death, while the evidence most favorable to the defendants showed that any negligence by the Hospital had only a 0 to 5 percent chance of affecting her chances of survival.

At the close of evidence, the Kramers requested jury instructions and questions that would have allowed the jury, if it failed to find that the Hospital was the proximate cause of Ms. Kramer's death, to impose liability for depriving her of the chance of survival she had at the time of the August 1985 pap smear. The trial court refused all of these requested jury issues. The jury failed to find that Ms. Nightingale was negligent and, while it did find that Dr. Burgess and the Hospital were negligent, it failed to find that such negligence proximately cause Ms. Kramer's death. On this verdict, the trial court rendered a take-nothing judgment in favor of the Hospital, and the court of appeals affirmed.


Under the traditional standard of sufficiency of evidence for submitting a medical malpractice case to the jury, plaintiffs are required to adduce evidence of a "reasonable medical probability" or "reasonable probability" that their injuries were caused by the negligence of one or more defendants, see, e.g., Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988); Lenger v. Physicians' Gen. Hosp., Inc., 455 S.W.2d 703, 706-07 (Tex.1970); Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 BAYLOR L.REV. 759, 761-62 (1992), meaning simply that it is "more likely than not" that the ultimate harm or condition resulted from such negligence. See Lenger, 455 S.W.2d at 707; Keith, 44 BAYLOR L.REV. at 761. As is true in other types of negligence cases, the ultimate standard of proof on the causation issue is whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred. See, e.g., Havner v. E-Z Mart, 825 S.W.2d 456, 459 (Tex.1992); McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1981). The effect of these standards is to bar recovery where the defendant's negligence deprived the tort victim of only a 50% or less chance of avoiding the ultimate harm. See Jim M. Perdue, Recovery for a Lost Chance of Survival: When the Doctor Gambles, Who Puts Up the Stakes? 28 SO.TEX.L.REV. 37, 43-44 (1987). Hence, where preexisting illnesses or injuries have made a patient's chance of avoiding the ultimate harm improbable even before the allegedly negligent conduct occurs--i.e., the patient would die or suffer impairment anyway--the application of these traditional causation principles will totally bar recovery, even if such negligence has deprived the patient of a chance of avoiding the harm.

Over the last twenty years, a number of states have sought to ameliorate this result by adopting some version of the so-called "loss of chance" doctrine. See Thompson v. Sun City Community Hosp., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984); Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455, 457 (1987); DeBurkarte v. Louvar, 393 N.W.2d 131, 137-38 (Iowa 1986); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149, 159-60 (1984); Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 720 (La.1986); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, 52-57 (1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 684-86 (Mo.1992) (en banc); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824, 828 (1985); Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589, 592 (1991); Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398, 405-08 (1990); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508, 510-11 (1974), aff'd mem., 37...

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