Lord v. Lovett

• Decision Date: 04 April 2001
• Docket Number: No. 99–179.,99–179.
• Citation: 146 N.H. 232,770 A.2d 1103
• Parties: Belinda Joyce LORD v. James LOVETT, M.D. & another.
• Court: New Hampshire Supreme Court

146 N.H. 232

770 A.2d 1103

Belinda Joyce LORD

v.James LOVETT, M.D. & another.

No. 99–179.

Supreme Court of New Hampshire.

April 4, 2001.

Rehearing Denied May 3, 2001.

McKean, Mattson & Latici, P.A., of Gilford, (Edgar D. McKean, III, on the brief and orally), for the plaintiff.

Ransmeier & Spellman, P.C., of Concord, (Lawrence S. Smith and John T. Alexander, on the brief, and Mr. Alexander orally), for defendant James Lovett, M.D.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester, (Ronald J. Lajoie and Todd Hathaway, on the brief, and Mr. Lajoie orally), for defendant Samuel Aldridge, M.D.

Sulloway & Hollis, P.L.L.C., of Concord, (Martin L. Gross and Sarah S. Murdough, on the brief), for New Hampshire Medical Society, as amicus curiae.

NADEAU, J.

The plaintiff, Belinda Joyce Lord, appeals the Superior Court's (Perkins , J.) dismissal of her "loss of opportunity" action against the defendants, James Lovett, M.D., and Samuel Aldridge, M.D. We reverse and remand.

The plaintiff suffered a broken neck in an automobile accident on July 22, 1996, and was treated at the Lakes Region General Hospital by the defendants. She contends that because the defendants negligently misdiagnosed her spinal cord injury, they failed both to immobilize her properly and to administer steroid therapy, causing her to lose the opportunity for a substantially better recovery. She alleges that she continues to suffer significant residual paralysis, weakness and sensitivity.

Upon learning that the defendants intended to move to dismiss at the close of the plaintiff's case, the trial court permitted the plaintiff to make a pre-trial offer of proof. She proffered that her expert would testify that the defendants' negligence deprived her of the opportunity for a substantially better recovery. She conceded, however, that her expert could not quantify the degree to which she was deprived of a better recovery by their negligence.

Following the plaintiff's offer of proof, the defendants moved to dismiss on two grounds: (1) New Hampshire law does not recognize the loss of opportunity theory of recovery; and (2) the plaintiff failed to set forth sufficient evidence of causation. The trial court dismissed the plaintiff's action on the basis that her case is "clearly predicated on loss of ... opportunity" and that "there's no such theory permitted in this State." This appeal followed.

When reviewing a motion to dismiss on appeal, we accept as true the plaintiff's allegations of fact and ask whether they "are reasonably susceptible of a construction that would permit recovery." Konefal v. Hollis/Brookline Coop. School Dist., 143 N.H. 256, 258, 723 A.2d 30 (1998) (quotation omitted).

The loss of opportunity doctrine, in its many forms, is a medical malpractice form of recovery which allows a plaintiff, whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain a better degree of recovery. See Delaney v. Cade, 255 Kan. 199, 873 P.2d 175, 178 (1994) ; King, "Reduction of Likelihood" Reformulation and Other Retrofitting of the Loss–of–a–Chance Doctrine, 28 U. Mem. L.Rev. 491, 492–93 (1998).

Generally, courts have taken three approaches to loss of opportunity claims.

The first approach, the traditional tort approach, is followed by a minority of courts. See Comment, The Loss of Chance Doctrine: A Small Price to Pay for Human Life, 42 S.D. L.Rev. 279, 293–95 (1997). According to this approach, a plaintiff must prove that as a result of the defendant's negligence, the plaintiff was deprived of at least a fifty-one percent chance of a more favorable outcome than she actually received. See King, "Reduction of Likelihood" Reformulation, supra at 506. Once the plaintiff meets this burden, she may recover damages for the entire preexisting illness or condition. See King, "Reduction of Likelihood" Reformulation, supra.

Under this approach, a patient whose injury is negligently misdiagnosed, but who would have had only a fifty percent chance of full recovery from her condition with proper diagnosis, could not recover damages because she would be unable to prove that, absent the physician's negligence, her chance of a better recovery was at least fifty-one percent. See King, "Reduction of Likelihood" Reformulation, supra. If, however, the patient could establish the necessary causal link by establishing that absent the negligence she would have had at least a fifty-one percent chance of a better outcome, not only would the patient be entitled to recover, but she would be awarded damages for her entire injury. See King, "Reduction of Likelihood" Reformulation, supra. This approach has been criticized as yielding an "all or nothing" result. See King, "Reduction of Likelihood" Reformulation, supra; Delaney, 873 P.2d at 183.

The second approach, a variation of the traditional approach, relaxes the standard of proof of causation. The causation requirement is relaxed by permitting plaintiffs to submit their cases to the jury upon demonstrating that a defendant's negligence more likely than not "increased the harm" to the plaintiff or "destroyed a substantial possibility" of achieving a more favorable outcome. See King, "Reduction of Likelihood" Reformulation, supra at 507.

Under this approach, the patient would not be precluded from recovering simply because her chance of a better recovery was less than fifty-one percent, so long as she could prove that the defendant's negligence increased her harm to some degree. See King, "Reduction of Likelihood" Reformulation, supra. The precise degree required varies by jurisdiction. Some courts require that the defendant's negligence increase the plaintiff's harm by any degree, while other courts require that the increase be substantial. See Delaney, 873 P.2d at 184–85. As in the traditional approach, once the plaintiff meets her burden, she recovers damages for the entire underlying preexisting condition or illness rather than simply the loss of opportunity. See King, "Reduction of Likelihood" Reformulation, supra. This approach "represents the worst of both worlds [because it] continues the arbitrariness of the all-or-nothing rule, but by relaxing the proof requirements, it increases the likelihood that a plaintiff will be able to convince a jury to award full damages." King, "Reduction of Likelihood" Reformulation, supra at 508.

Under the third approach, the lost opportunity for a better outcome is, itself, the injury for which the negligently injured person may recover. See King, "Reduction of Likelihood" Reformulation, supra. As with the second approach, a plaintiff may prevail even if her chances of a better recovery are less than fifty-one percent. See King, "Reduction of Likelihood" Reformulation, supra.

The plaintiff, however, does not receive damages for the entire injury, but just for the lost opportunity.

In other words, if the plaintiff can establish the causal link between the defendant's negligence and the lost opportunity, the plaintiff may recover that portion of damages actually attributable to the defendant's negligence. See King, "Reduction of Likelihood" Reformulation, supra at 509.

Under this approach, "[b]y defining the injury as the loss of chance ..., the traditional rule of preponderance is fully satisfied." Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589, 592 (1991).

We agree with the majority of courts rejecting the traditional "all-or-nothing" approach to loss of opportunity cases, and find the third approach most sound. See Delaney, 873 P.2d at 184–86; Perez, 805 P.2d at 591–93. The third approach permits plaintiffs to recover for the loss of an opportunity for a better outcome, an interest that we agree should be compensable, while providing for the proper valuation of such an interest.

[T]he loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should be valued appropriately, rather than treated as an all-or-nothing proposition. Preexisting conditions must, of course, be taken into account in valuing the interest destroyed. When those preexisting conditions have not absolutely preordained an adverse outcome, however, the chance of avoiding it should be appropriately compensated even if that chance is not better than even.

King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1354 (1981).

Accordingly, we hold that a plaintiff may recover for a loss of opportunity injury in medical malpractice cases when the defendant's alleged negligence aggravates the plaintiff's preexisting injury such that it deprives the plaintiff of a substantially better outcome. See Delaney, 873 P.2d at 178, 185–86; see also Perez, 805 P.2d at 592.

The defendants argue that RSA chapter 507–E precludes us from adopting the lost chance doctrine. They first argue that RSA chapter 507–E defines the types of harm for which a plaintiff may recover and does not include loss of opportunity. We disagree.

RSA 507–E:1 defines "medical injury" as

any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; ... from failure to diagnose; ... or otherwise arising out of or sustained in the course of such services.

RSA 507–E:1, III (1997).

The plaintiff's loss of opportunity injury is an adverse or unintended consequence resulting from the defendants' negligence, error, omission, or failure to diagnose. See RSA 507–E:1. Nothing in the statute's plain language precludes us from recognizing this right of recovery. We recognize the right based not upon an "expansive" reading of the statute or a "generous" interpretation of medical injury, but rather, upon a strict application of statutory construction and well-established tort...