Perez v. Las Vegas Medical Center

• Citation: 805 P.2d 589,107 Nev. 1
• Decision Date: 01 February 1991
• Docket Number: No. 19905,19905
• Parties: Bertha PEREZ, Special Administratrix of the Estate of Marco Lopez, and Bertha Perez, natural mother and guardian of Arianny Celeste Lopez, Appellant, v. LAS VEGAS MEDICAL CENTER, Dr. Gregory, Respondents.
• Court: Supreme Court of Nevada

Page 589

805 P.2d 589

107 Nev. 1

Bertha PEREZ, Special Administratrix of the Estate of Marco Lopez, and Bertha Perez, natural mother and guardian of Arianny Celeste Lopez, Appellant, v. LAS VEGAS MEDICAL CENTER, Dr. Gregory, Respondents.

No. 19905.

Supreme Court of Nevada.

Feb. 1, 1991.

[107 Nev. 2] Eva Garcia, Las Vegas, for appellant.

Alverson, Taylor & Mortensen, and Bryan K. Gould, Las Vegas, for respondents.

OPINION

ROSE, Justice:

This is an appeal from a summary judgment entered against the appellant (hereinafter, Ms. Perez) in a wrongful death action. The district court held that Ms. Perez could not prove that the alleged negligence of the health care provider was the legal cause of the death, because the decedent probably would have died anyway due to his serious preexisting medical condition. We adopt the "loss of chance" doctrine for medical malpractice cases, and under that doctrine Ms. Perez raised genuine issues of material fact to the district court. Accordingly, we reverse the grant of summary judgment and remand this case for further proceedings.

FACTS

The pertinent facts submitted by the parties in connection with respondents' motion for summary judgment are as follows. On April 15, 1985, Marco Lopez, a prisoner at the Clark County Detention Center, died of a massive brain hemorrhage, due apparently to an aneurism or a congenital defect in an artery.

Lopez had been detained and incarcerated on April 3, 1985. Two days later, after he complained that he was ill, Lopez was taken to the Las Vegas Medical Center, which was under contract to treat prisoners from the detention center. From April 5-9, Lopez was confined in the medical ward. During this time physicians made no attempt to diagnose the persistent headaches of which Lopez was complaining. Lopez was returned to jail. On April 15, Lopez was discovered in his cell by a nurse to be having seizures. Although the duty physician, Dr. Gregory, was notified by telephone of the seizures, no examination or treatment other than administration of valium and phenobarbital was given Mr. Lopez. A few hours later, Mr. Lopez was found dead in his cell.

Based on this death, Ms. Perez brought the present lawsuit, alleging wrongful death due to negligence on the part of the responsible medical providers. Dr. Tiholiz, a general practitioner from Los Angeles, testified in a deposition on behalf of Ms. Perez. Dr. Tiholiz stated that Lopez would have had a "reasonable chance" of surviving the hemorrhage if he had been given prompt and proper medical care. Dr. Tiholiz admitted, however, that Lopez probably did not have a greater than fifty percent chance of surviving the hemorrhage, even given proper medical care. Additionally, Carolyn Sabo, a professor of nursing at the University of Nevada Las Vegas, testified in a deposition that, if given proper medical care and diagnosis, Lopez "might" have lived. An expert on behalf of the respondents, however, suggested that Mr. Lopez' chances of surviving such a hemorrhage would be very slight.

Respondents moved for summary judgment against Ms. Perez on the ground that any negligence by health care providers could not have been the legal cause of Lopez' death, since Lopez probably would have died anyway due to his serious preexisting condition. Based on the evidence stated above, the district court entered summary judgment in favor of respondents. Ms. Perez appeals the order granting summary judgment.

LEGAL DISCUSSION

The question presented by this appeal is whether the district court erred by granting respondents' motion for summary judgment on appellant's wrongful death claim alleging medical malpractice. "Summary judgment is appropriate only when the moving party is entitled to judgment as a matter of law, and no genuine issue of material fact remains for trial;" properly supported factual allegations of the party opposing summary judgment must be accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). Additionally, the pleadings and documentary evidence must be construed in the light which is most favorable to the party against whom the motion for summary judgment is directed. Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982). Litigants are not to be deprived of a trial on the merits if there is the slightest doubt as to the operative facts. Id.

First we address the question of respondents' entitlement to judgment as a matter of law. Ms. Perez sued on a negligence theory. To prevail on a negligence theory, the plaintiff generally must show that: (1) the defendant had a duty to exercise due care towards the plaintiff; (2) the defendant breached the duty; (3) the breach was an actual cause of the plaintiff's injury; (4) the breach was the proximate cause of the injury; and (5) the plaintiff suffered damage. Beauchene v. Synanon Foundation, Inc., 88 Cal.App.3d 342, 151 Cal.Rptr. 796, 797 (1979). In order to establish entitlement to judgment as a matter of law, respondents must negate at least one of the above five elements of the plaintiff's case.

The issue disputed on this appeal is whether Ms. Perez failed, as a matter of law, to establish the existence of actual causation, i.e., that the alleged medical malpractice actually caused the harm complained of. As a general rule in medical malpractice cases, the plaintiff must prove that the alleged negligence more probably than not caused the ultimate injury (rule of proving causation by a preponderance of evidence). See Orcutt v. Miller, 95 Nev. 408, 411-12, 595 P.2d 1191, 1193 (1979). Respondents argue that the evidence shows that Mr. Lopez probably would have died anyway due to his serious preexisting physical condition. Therefore, respondents contend, only the preexisting medical ailment, and not the alleged medical malpractice, can be considered the probable, or preponderant, cause of Lopez' death. In short, respondents contend that Ms. Perez cannot, as a matter of law, establish the element of actual causation according to the traditional preponderance requirement.

The issue of first impression presented by respondents' argument is whether the preponderance requirement for proof of causation operates to bar recovery in medical malpractice cases where there is a fifty percent or greater chance that the patient's underlying ailment caused the death (i.e., where the plaintiff has a fifty-fifty or lower chance of survival due to a serious preexisting medical problem). There are many cases coming down on both sides of this question. See Annotation, Medical Malpractice: "Loss of Chance" Causality, 54 A.L.R.4th 10 (1987). Applying the traditional preponderance requirement strictly, some courts have held that plaintiffs with fifty-fifty or lower chances of survival due to their original ailment cannot demonstrate that medical malpractice was the actual cause of the death. See, e.g., Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984). Several other courts have relaxed the traditional preponderance requirement for causation to allow limited recovery under these circumstances. See, e.g., McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467 (Okl.1987); Herskovits v. Group Health Co-op., 99 Wash.2d 609, 664 P.2d 474 (1983).

We conclude that the large line of cases which permits recovery under these circumstances represents the better view. There are many good arguments against applying the preponderance rule of causation strictly to bar recovery in cases such as this. See especially, Herskovits, 664 P.2d at 486-87 (Pearson, J., concurring) (quoting King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981)). Of the various arguments against the position urged by respondents, the following is most fundamental: the respondents' position would bar any recovery in tort on behalf of the survivors of many potentially terminal patients, no matter how blatant the health care provider's negligence. Through negligence, a physician or other health care provider could reduce a patient's chances of survival from as high as fifty percent to, for example, ten percent, and yet remain unanswerable in the law of tort. This position is simply untenable. As the McKellips court explains:

Health care providers should not be given the benefit of the uncertainty created by their own negligent conduct. To hold otherwise would in effect allow care providers to evade liability for their negligent actions or inactions in situations in which patients would not necessarily have survived or recovered, but still would have a significant chance of survival or recovery.

McKellips, 741 P.2d at 474. The disadvantages of the position urged by respondents are both more certain and more severe than any disadvantages of the position we adopt today. Additionally, it is important to recall that no cause of action will lie absent some instance of negligence by the health care provider.

As discussed in McKellips, courts have adopted various rationales in order to avoid the harsh and unjustified result just discussed. We conclude that the best rationale supporting recovery in these circumstances is the "loss of chance" doctrine. Under this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine L.Rev. 973 (1985) (authored by Patricia L. Andel). Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent...