Mayhue v. Sparkman
| Decision Date | 31 January 1994 |
| Docket Number | No. 10A05-9210-CV-359,10A05-9210-CV-359 |
| Citation | 627 N.E.2d 1354 |
| Parties | H. Wayne MAYHUE, M.D., Appellant-Defendant, v. Charles SPARKMAN, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Gregory J. Bubalo, Tracy S. Prewitt, Ogden Newell & Welch, Louisville, KY, for appellant-defendant.
Nicholas F. Stein, New Albany, for appellee-plaintiff.
Charles Sparkman filed a complaint against Dr. Wayne Mayhue to recover damages resulting from the death of Sparkman's wife, Norma. No suit was filed by Norma's estate; Sparkman filed only his own suit to recover for loss of consortium. 1 In the complaint for medical malpractice, Sparkman alleges that Mayhue negligently delayed in diagnosing Norma's cancer, and that the six-month delay was a proximate cause of Norma's death. The Medical Review Panel issued an unanimous opinion that Mayhue did not comply with the appropriate standard of care, but that "the conduct complained of was not a factor of the resultant damages." Mayhue filed a motion for summary judgment based upon the depositions of several expert witnesses who all agreed that Norma would have had a less than 50% chance of survival if the cancer had been diagnosed six months earlier.
The trial court denied the motion for summary judgment and this court accepted the interlocutory appeal to consider the issue whether a cause of action exists for a six-month delay in the diagnosis of cancer where the delay caused the decedent to lose a chance of recovery.
The facts are not in dispute. In 1981, Norma Sparkman underwent radiation therapy to treat her cervical cancer. At the time, Dr. Mayhue was her treating gynecologist. She remained under his care until 1985 when she returned to the care of her family physicians at the Havens Group. Pap smears taken from 1985 until October, 1988, revealed no abnormalities. On May 15 and May 23, 1989, pap smears taken by a doctor from the Havens Group did reveal abnormal cells. Norma was referred to Dr. Mayhue, whom she saw on May 26, 1989. Mayhue did not have the results of the pap smears taken on May 15 and 23, so he took another pap smear. This pap smear also showed abnormal cells. Mayhue believed the abnormal cells were the result of inflammation and not a recurrence of the cancer. Mayhue did not perform tests that revealed the cancer had returned until November of 1989.
Norma was referred to an oncologist, whom she saw on November 28, 1989. The biopsy revealed that Norma had uterine cancer. Exploratory surgery was performed on January 5, 1990. By that time, the cancer had spread to such an extent that surgery to remove it was not an option. Norma died in November, 1990.
For purposes of this appeal, the parties assume that Dr. Mayhue breached the standard of care. The expert testimony indicates that Norma would have had a better than zero but less than 50% chance to survive if the cancer had been detected earlier.
In a medical malpractice action, the plaintiff must prove that (1) the physician owed a duty to the plaintiff, (2) the physician breached that duty, and (3) the physician's breach proximately caused the plaintiff to suffer a compensable injury. Watson v. Medical Emergency Services (1989), Ind.App., 532 N.E.2d 1191, 1193, reh'g denied, trans. denied. This appeal concerns whether Dr. Mayhue's delay in detecting the cancer proximately caused Norma to suffer compensable injuries identified by Sparkman as (1) growth of the tumor, (2) a decreased chance of survival, and (3) death. We will treat (1) and (2) as one injury because the chance of recovery was lost due to the tumor's growth while undetected.
The difficulty faced by the plaintiff in a case such as this is the need to prove that the defendant's negligence caused the death where death might normally be expected to follow from the original disease--in this case, cancer. See Annot., 54 A.L.R.4th 10 (1987). Under the traditional proximate cause analysis, the plaintiff must prove that if proper diagnosis or treatment had been made, the patient would have survived. Id. This analysis focuses on whether the defendant's conduct more probably than not caused the plaintiff's injury or death. The compensable injury is the death or other complained-of result. Thus, if death more probably than not would have resulted even in the absence of malpractice, the plaintiff cannot recover. Stated another way, the traditional analysis requires the plaintiff to prove that in the absence of malpractice, the decedent had a greater than 50% chance of survival. See, e.g., Cooper v. Sisters of Charity of Cincinnati (1971), 27 Ohio St.2d 242, 272 N.E.2d 97 ().
This burden is impossible for the plaintiff to meet, however, where the patient probably would die from the condition or disease in the absence of negligence. Thus, even if the physician was blatantly negligent, no recovery could be had by a patient who was probably going to die.
Due to the often harsh application of the traditional approach, some courts have adopted a special rule of proximate cause to use in medical malpractice cases to determine whether a plaintiff has met the burden of proof on the element of proximate cause in a situation where the claim is that the defendant's negligence deprived the patient of a better result or the chance to survive. See generally 54 A.L.R.4th 10, supra. The plaintiff must only show the defendant's conduct deprived the patient of the chance of a better result or recovery. Stated differently, the plaintiff need only prove that the defendant's negligence deprived the patient of some chance of recovery. Many variations on this loss of chance doctrine have been applied by the courts.
Under the "pure" loss of chance doctrine, the plaintiff is required to show that it is more likely than not that the physician deprived the patient of some chance of a better result or recovery absent the malpractice. The compensable injury is not the result, i.e. death, but the loss of the chance the patient would have had for recovery or for a better result if the defendant had not been negligent. See generally Joseph King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981) (hereinafter cited as King ).
Other courts require the plaintiff to show that the physician increased the risk of harm to the patient by depriving the patient of a chance to recover. However, these courts go one step further and allow, without any further evidence, the fact-finder to infer that the increased risk was a proximate cause of the injury. As under the traditional analysis, the injury is generally defined by the court as the ultimate result, i.e., death. Thus, the plaintiff may recover where it is merely possible that the defendant caused the injury. This is a variation of the loss of chance doctrine with a relaxed causation standard which we refer to as the Sec. 323 approach. See, e.g., Hamil v. Bashline (1978), 481 Pa. 256, 392 A.2d 1280. 2
Under the traditional analysis--focusing on death as the injury--Sparkman cannot survive summary judgment because the evidence shows that Norma would not have had a better than 50% chance of survival if the cancer had been detected earlier. Consequently, Sparkman urges us to adopt the loss of chance doctrine. Indiana has not had the opportunity to directly decide whether to depart from the traditional causation analysis in medical malpractice cases of this type, although the loss of chance theory has been discussed in dicta. See Jablonski v. Inland Steel Co. (1991), Ind.App., 575 N.E.2d 1039, reh'g denied, trans. denied; Watson, 532 N.E.2d 1191. In Watson, the Second District faced a fact pattern very similar to this case. The decedent was not diagnosed with lung cancer until it was inoperable. Assuming that the defendants negligently failed to diagnose the cancer sooner, the court turned to whether the plaintiff showed that earlier detection would have prolonged the decedent's life. The most favorable testimony indicated that some treatments under some circumstances might prolong life, but none of the experts testified that the decedent's life could have been prolonged or saved with earlier diagnosis. Applying the traditional analysis, the court noted that, although medical expert testimony "to a reasonable medical certainty" is no longer required, testimony as to mere possibilities will not suffice. Id. at 1195. Thus, the court did not need to decide whether to adopt the loss of chance theory because the plaintiff did not show that it was more probable than not that the decedent was deprived of a chance of survival.
In Jablonski, 575 N.E.2d 1039, the decedent suffered a fatal heart attack while at work. Paramedics employed by the decedent's employer treated the decedent, but the decedent died before reaching the hospital. The plaintiff alleged that the treatment given to the decedent by the employer's paramedics was negligent and proximately caused his death by depriving him of a "chance of life." In asking the court to apply the loss of chance theory to a worker's compensation case, the plaintiff introduced evidence that over 50% of heart attack patients die before they reach the hospital and that the majority of that number "could, indeed, be taken to the hospital alive" if appropriate critical care had been administered. Id. We concluded that even if the court were to adopt the loss of chance theory and apply it to plaintiff's case, plaintiff could not recover because the evidence demonstrated, at best, that the decedent "may have had a slightly less than 50% chance of survival." Id. (citing Watson, 532 N.E.2d 1191) In Jablonski, we did not consider the alternative approaches to the loss of chance doctrine that...
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