Smith v. Parrott

• Decision Date: 01 August 2003
• Docket Number: No. 02-322.,02-322.
• Citation: 833 A.2d 843
• Parties: Stephen L. SMITH v. Thomas B. PARROTT.
• Court: Vermont Supreme Court

833 A.2d 843

Stephen L. SMITH v. Thomas B. PARROTT.

No. 02-322.

Supreme Court of Vermont.

August 1, 2003.

Norman E. Watts, Woodstock, for Plaintiff-Appellant.

Laura Q. Pelosi and John Davis Buckley of Theriault & Joslin, P.C., Montpelier, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY and SKOGLUND, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned.

¶ 1. ALLEN, C.J. (Ret.), Specially Assigned.

Stephen L. Smith, plaintiff in this medical malpractice action, appeals from a summary judgment of the Windsor Superior Court in favor of defendant Thomas Parrott, M.D. Plaintiff contends the trial court erred in: (1) finding that plaintiff had failed to show a probability that Dr. Parrott's negligence was the cause of his paralysis; and (2) rejecting plaintiff's theory of recovery based on a showing that Dr. Parrott's negligence had reduced plaintiff's chances of recovery, even if it was not the probable cause of his injuries. We affirm.

¶ 2. The undisputed material facts may be briefly summarized. On July 31, 1995, plaintiff awoke to find that he had no motor control over the use of his left foot. That afternoon he went to see Dr. Parrott, a family practitioner in White River Junction. Dr. Parrott noted that plaintiff had had two prior back surgeries, and described plaintiff's condition as a "[d]ramatic foot drop on the left side." Foot-drop is a neurological condition in which the motor functions of the foot and lower leg are diminished or terminated. Dr. Parrott referred plaintiff to a neurosurgeon.

¶ 3. Eleven days later, plaintiff was examined by Dr. Joseph Phillips, a neurosurgeon at Dartmouth-Hitchcock Medical Center. Dr. Phillips concluded that plaintiff's condition was complete or permanent, and that there was no possibility of any functional recovery. Plaintiff underwent surgery in early September to alleviate pain. His motor functions did not improve.

¶ 4. Plaintiff filed a medical malpractice action against Dr. Parrott, alleging that his failure to advise plaintiff of the need for an immediate neurological examination, and his failure to arrange such an examination, had resulted in the deterioration of plaintiff's condition to the point of permanence by the time he saw Dr. Phillips.¹ Following extensive discovery, Dr. Parrott moved for summary judgment, asserting that plaintiff had failed to adduce evidence that Parrott's conduct—even if below the standard of care—was the proximate cause of plaintiffs' injuries. The motion cited Dr. Phillips' deposition testimony that plaintiff's foot-drop was complete two to three weeks before his neurological examination on August 11, and therefore that the delay in surgery had no impact on plaintiff's chances of recovery. Dr. Parrott also relied on the deposition testimony of plaintiff's expert witness, Dr. Donald Myers, who had initially opined that an earlier consultation with a neurosurgeon could have yielded a "50-50 chance" of "some recovery," but later amended his opinion to state that, in light of plaintiff's history of back surgery, the chance of some recovery was "a little bit" less than fifty percent.

¶ 5. In a written decision, the trial court granted the motion, finding that plaintiff had failed to show that his condition was more likely than not the result of Dr. Parrott's negligence, and rejecting plaintiff's effort to recover on a lesser showing under the so-called "loss of chance" doctrine. This appeal followed.

¶ 6. In reviewing a summary judgment we apply the same standard as the trial court, affirming the judgment only when the moving party has demonstrated that there are no genuine issues of material fact and the party is entitled to judgment as a matter of law, and resolving all reasonable doubts in favor of the party opposing the motion. O'Donnell v. Bank of Vt., 166 Vt. 221, 224, 692 A.2d 1212, 1214 (1997). Plaintiff contends the trial court abused this standard in finding that he had failed to satisfy the traditional causation rule requiring evidence of a likelihood, or a greater than fifty percent chance, that Dr. Parrott was the cause of plaintiff's paralysis. Plaintiff relies on Dr. Myers' testimony that an earlier neurological examination would have yielded about a fifty-fifty chance of some recovery, asserting that the court should have erred on the high side. As noted, however, Dr. Myers modified his opinion to state that in plaintiff's case the chances of recovery were less than fifty percent. Thus, plaintiff failed to adduce evidence establishing the essential element of causation, and summary judgment was properly entered. See Gallipo v. City of Rutland, 163 Vt. 83, 86, 656 A.2d 635, 638 (1994) (summary judgment will be granted if, after adequate time for discovery, party fails to make showing sufficient to establish essential element of the case on which the party will bear burden of proof at trial).

¶ 7. Plaintiff also contends the trial court should have departed from the traditional causation standard to allow recovery based on evidence that Dr. Parrott's failure to procure an immediate neurological examination reduced plaintiff's chances of recovery, even if the evidence failed to show a likelihood that it was the cause of his injuries. Plaintiff relies on the so-called "loss of chance" doctrine discussed in the legal literature and accepted in a growing number of states. As explained by its principal proponent, "[u]nder the loss-of-a-chance doctrine, the plaintiff would be compensated for the extent to which the defendant's negligence reduced the victim's likelihood of achieving a better outcome, notwithstanding the fact that the likelihood may have been reduced by less than fifty-one percent." J. King, "Reduction of Likelihood" Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev. 491, 493 (1998); see also Professor King's original seminal article, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981).

¶ 8. The loss of chance doctrine has received substantial support among academic commentators and has been accepted—in one form or another—in a growing number of jurisdictions, particularly in medical malpractice cases. See generally Crosby v. United States, 48 F.Supp.2d 924, 926-28 (D.Alaska 1999) (providing comprehensive review of cases accepting and rejecting loss of chance doctrine); D. Fischer, Tort Recovery For Loss of a Chance, 36 Wake Forest L. Rev. 605, 607 (2001) (comparing applications in Great Britain and the United States); King, supra, 28 U. Mem. L. Rev. at 493 n. 8 (listing articles relating to loss of chance doctrine); Note, Loss of a Chance as a Cause of Action in Medical Malpractice Cases, 59 Mo. L. Rev. 969, 973 n. 29 (1994) (listing cases allowing recovery for loss of chance); see also Annotation, Medical Malpractice: Measure and Elements of Damages in Actions Based on Loss of Chance, 81 A.L.R.4th 485 (1990); Annotation, Medical Malpractice: "Loss of Chance" Causality, 54 A.L.R.4th 10 (1987). Supporters cite a number of policy arguments in favor of the doctrine, most notably the harshness of the traditional rule in denying recovery even in cases where a doctor's negligence may have significantly reduced the plaintiff's chances of recovery; the inherent worth of a chance of recovery, no matter how small, as a compensable interest; and the deterrent value in penalizing a poor prognosis, even if it reduced the plaintiff's chances of recovery by less than fifty percent. See, e.g., Crosby, 48 F.Supp.2d at 928; Wendland v. Sparks, 574 N.W.2d 327, 330 (Iowa 1998); Delaney v. Cade, 255 Kan. 199, 873 P.2d 175, 180-83 (1994); Lord v. Lovett, 146 N.H. 232, 770 A.2d 1103, 1106 (2001); Jorgenson v. Vener, 2000 SD 87, 616 N.W.2d 366, 369; Note, supra, 59 Mo. L. Rev. at 984-85.

¶ 9. These cases and commentators notwithstanding, the traditional causation standard in medical malpractice—as in tort law generally—"still commands substantial support." King, supra, 28 U. Mem. L. Rev. at 505. Indeed, a significant number of jurisdictions have expressly rejected invitations to adopt the loss of chance doctrine to allow recovery where— as here—the defendant's negligence was not shown to have been the likely cause of injury. See, e.g., Crosby, 48 F.Supp.2d at 930-32 (applying Alaska law); Williams v. Spring Hill Mem'l Hosp., 646 So.2d 1373, 1374-75 (Ala.1994); Grant v. Am. Nat'l Red Cross, 745 A.2d 316, 322-23 (D.C.Ct. App.2000); Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1020-21 (Fla.1984); Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185, 1189-90 (1992); Fennell v. S. Md. Hosp. Ctr., Inc., 320 Md. 776, 580 A.2d 206, 211 (1990); Fabio v. Bellomo, 504 N.W.2d 758, 762-63 (Minn.1993); Jones v. Owings, 318 S.C. 72, 456 S.E.2d 371, 374 (1995); Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn.1993); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 407 (Tex.1993). Opposition to the loss of chance doctrine is generally based on several policy arguments, including the anomaly and unfairness of applying a lower causation standard to health care providers than other professionals; the risk of increasing the number of successful claims and thereby elevating the price of malpractice insurance and health care costs in general, as doctors are forced to practice "defensive" medicine; and the illusion of deterrence where it cannot be shown that the defendant in fact caused the injury. See, e.g., Crosby, 48 F.Supp.2d at 928-29; Gooding, 445 So.2d at 1019-20; Fennell, 580 A.2d at 215; Kilpatrick, 868 S.W.2d at 603; Kramer, 858 S.W.2d at 406.

¶ 10. Although we have not had occasion to address the issue, a federal district court applying Vermont law has predicted that this Court would adopt the doctrine in a case where the defendant's negligent failure to diagnose reduced the plaintiff's chances of recovery. See Short v. United States, 908 F.Supp. 227, 237 ...