Wollen v. DePaul Health Center, 74115

• Decision Date: 02 April 1992
• Docket Number: No. 74115,74115
• Citation: 828 S.W.2d 681
• Parties: Linda F. WOLLEN, Appellant, v. DePAUL HEALTH CENTER, Richard F. Jotte, Sr., M.D., Edwin Ernst, III, M.D., and Ernst Radiology Clinic, Inc., Respondents.
• Court: Missouri Supreme Court

Page 681

828 S.W.2d 681

Linda F. WOLLEN, Appellant, v. DePAUL HEALTH CENTER, Richard F. Jotte, Sr., M.D., Edwin Ernst, III, M.D., and Ernst Radiology Clinic Inc., Respondents.

No. 74115.

Supreme Court of Missouri En Banc.

April 2, 1992.

Stephen Meyerkord, St. Louis, for appellant.

C. Robert Buckley, Independence, for amicus Mata.

Don R. Sherman, Sanford Goffstein, Lori Koch, Joseph Kortenhof, Robert A. Wulff, Mark R. Dunn, St. Louis, for respondents.

Jeffrey P. Ray, Charles W. McKee, Kansas City, for amicus Missouri Org. Defense Lawyers.

BENTON, Judge.

Linda F. Wollen appeals the dismissal, for failure to state a cause of action, of her petition for damages filed under the wrongful death statute, § 537.080 RSMo 1986. The decision below is vacated; and this case is remanded for further proceedings in accordance with this opinion.

I.

Assuming for the purposes of appellate review that the allegations in appellant's pleadings are true, the facts of this case are: On January 26, 1988, David L. Wollen went to respondent Richard F. Jotte, Sr., M.D., for medical treatment. Dr. Jotte referred Mr. Wollen to the other respondents, DePaul Health Center, Ernst Radiology Clinic, Inc., and Edwin Ernst, III, M.D., for tests. If respondents had performed appropriate tests, or had correctly interpreted the tests that they had conducted, respondents would have diagnosed that Mr. Wollen was suffering from gastric cancer on January 28, 1988. If Mr. Wollen had been correctly diagnosed, and given appropriate treatment, he would have "had a thirty percent (30%) chance of survival and cure."

Mr. Wollen died from gastric cancer on July 2, 1989. On January 17, 1990, Linda F. Wollen, Mr. Wollen's widow, filed a wrongful death action against respondents. Each respondent filed a motion to dismiss the action on the ground that the petition failed to plead a causal connection between respondents' negligence and the death of Mr. Wollen. The circuit court sustained respondents' motions, and appellant refused leave to file an amended petition on May 7, 1990. After appeal to the Court of Appeals, Eastern District, and on application by appellant, this Court ordered this case transferred here on September 10, 1991.

II.

This case turns on the issues of proof and causation. At this initial stage of the case, courts are required to assume that the evidence introduced at the trial will prove the facts as pled by the plaintiff. See Ritterbusch v. Holt, 789 S.W.2d 491, 492 (Mo. banc 1990); Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). The question remains, however, whether the ultimate legal fact of causation can be inferred from those facts.

As is the case with most petitions, in addition to pleading the alleged facts, the petition before this Court pleads, as facts, elements of the cause of action--negligence, causation, and damages. Such "facts"/elements are, in reality, merely legal conclusions. See Bergel v. Kassebaum, 577 S.W.2d 863, 867 (Mo.App.1978). In the simple negligence case, the inference from the real pleadings of fact to these legal conclusions is simple and straightforward. A statement that the plaintiff slipped on a patch of ice creates an inference that the ice caused the plaintiff to slip. The inference in this case is not that easy.

In the failure-to-diagnose case, the fact pleaded to show causation often has to be a statistic. This problem can be avoided if the plaintiff can plead that there is a reasonable medical or scientific certainty that defendant's negligence caused the harm. Cf. Schiles v. Schaefer, 710 S.W.2d 254, 261 (Mo.App.1986); Bertram v. Wunning, 417 S.W.2d 120, 125 (Mo.App.1967).

The cases on reasonable medical certainty, however, reflect the lack of clarity that can occur when the legal profession tries to impose its terms on other professions. In this Court's understanding of the medical issues involved, there are three possibilities: two of which involve "reasonable medical certainty," and a third that does not.

The first possibility is the circumstance that could be phrased as "but for" causation. In this circumstance, the patient has a disease for which, at the stage the patient seeks diagnosis, there is a cure that works in the overwhelming majority of cases. Death from this type of disease caught at this stage is rare unless either the patient or the doctor is negligent at some stage of the treatment process.

The second possibility is exactly the opposite. In this circumstance, there is no known cure for the disease. Medical science can only, at best, extend the patient's life a short time. In the overwhelming majority of cases, the disease is fatal except for a small number of spontaneous remissions or cures.

The third possibility is the one that appears in this case. Doctors have a treatment that works in a large number of cases and fails in a large number of cases. Because there is a real chance that the patient will survive and a real chance that the patient will die from the disease--even if it is diagnosed--it is impossible for a medical expert to state with "reasonable medical certainty" the effect of the failure to diagnose on a specific patient, other than the fact that the failure to diagnose eliminated whatever chance the patient would have had.

III.

Appellant proposes analyzing this case under the theory that respondents' negligence was a "substantial factor" that contributed to Mr. Wollen's death. Prior cases do not support appellant's interpretation of the substantial factor theory. In Jackson v. Ray Kruse Const. Co., 708 S.W.2d 664, 667-69 (Mo. banc 1986), this Court examined the issue of multiple tort-feasors and considered situations where, while cause could not absolutely be proven, it is "more likely than not" that "but for" the negligence of the tort-feasors the injury would not have occurred. In Goff v. St. Luke's Hospital of Kansas City, 753 S.W.2d 557, 563 (Mo. banc 1988), the plaintiff's evidence showed that the negligence of the physicians and the hospital was "a major cause of death."

In this case, appellant can only allege that, even when all of the tort-feasors are taken together, the negligence of the respondents might have contributed to the death of Mr. Wollen. In these circumstances, the petition fails to allege facts that indicate that respondents' negligence was a substantial factor in causing the death of Mr. Wollen.

IV.

In argument before this Court, all parties have discussed whether this Court should recognize an alternative theory of recovery based on the Restatement (Second) of Torts, section 323(a). As Missouri is a fact-pleading state, this Court will consider whether the facts as pled entitle appellant to relief under a "lost chance of recovery" theory. See Rule 55.05.

In the past this Court has recognized that section 323 creates a duty of care. See Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 432-33 (Mo. banc 1985). In creating this duty, this section of the Restatement defines a type of negligent behavior but does not alter the rules of causation. For the reasons discussed in Parts III and V, the petition fails to allege facts that show that respondents' alleged negligence caused Mr. Wollen's death. The petition does, however, allege facts that would support an action for lost chance of recovery. ¹

The arguments against recognizing such a cause of action, however, are not totally without merit. Traditionally, causation has been treated as a "yes-or-no" or "all-or-nothing" question. There has been a trend towards apportioning fault among various parties in law suits but such apportionment occurs only after the jury has decided that the evidence shows causation. See, e.g., Kibbons v. Union Electric, 823 S.W.2d 485 (Mo. banc 1992); Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). This traditional view of causation does aid the goal--which should be shared by the entire legal profession--of avoiding unnecessary barriers to ordinary people understanding their rights and responsibilities under the law.

On the other hand, there are compelling reasons for granting compensation in this type of cause of action. The traditional yes-no view of the world in causation theory does not match the "maybe" view of the world found in probability, statistics, and everyday life. To both the statistician and the patient seeking care from a doctor, there is no meaningful difference between a 50.001% and a 49.999% chance of recovery.

Medical science has given patients real chances to recover, sometimes only a small chance, but still a chance, in circumstances that used to be hopeless. When patients go to doctors with serious illnesses, they expect to have those chances that medical science has provided. To the individual patient, if the doctor's negligence destroys the chance of recovery, it is irrelevant what that chance originally was. The courts of this state implicitly recognized this fact as far back as 1923. Cf. Smith v. Mallinckrodt Chemical Works, 212 Mo.App. 158, 251 S.W. 155, 158 (1923).

A patient with cancer, like Mr. Wollen, would pay to have a choice between three unmarked doors--behind two of which were death, with life the third option. A physician who deprived a patient of this opportunity, even though only a one-third chance, would have caused her real harm.

In light of this reality, the patient does suffer a harm when the doctor fails to diagnose or adequately treat a serious injury or disease. The harm suffered is not, however, the loss of life or limb. The harm is the loss of the chance of recovery. While, in the end, damages can only be expressed by multiplying the value of a lost life or limb by the chance of recovery lost, ² the proper place for such an inquiry is in the damages stage rather than in the liability/causation determination. See Herskovitz 664 P.2d at 485-86 (Pearson, J., concurring); cf. William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 263-69 (1987) ...