Lost of Diminished Chance Doctrine Yanked Back from Kentucky Malpractice Victims

Medical malpractice victims suffered a setback in Kentucky last week when the Supreme Court of Kentucky reversed the Kentucky Court of Appeals ruling adopting the “lost or diminished chance of recovery” in medical malpractice cases in Kemper v. Gordon. (This defense verdict was, however, reversed on other grounds because the trial court erred in excluding evidence that an expert has reached the opposite conclusion in another case.)

Sad Facts of Kemper

lost diminished chanceThe facts of Kemper are tragic. A 38-year-old mother in otherwise good health presented at the emergency room with chest pain, shortness of breath, severe nausea, and dizziness. For a year, these and related symptoms appeared. The court dismissed all as anxiety or panic attacks. Finally, the woman was diagnosed with metastasized gastric (stomach) cancer. After her death, her family brought a medical malpractice lawsuit. At various points along the way to the jury, she settled with five of the six doctors that treated her. The jury returned a defense verdict.

At trial, the Plaintiffs sought a jury instruction that the doctor’s negligence was a “substantial factor in causing the injury” to the decedent. The trial court rejected this instruction. The Kentucky Court of Appeals reversed and adopted the “lost of diminished chance of recovery” doctrine, pointing out that a growing number of states have adopted the lost or diminished chance doctrine, including Kentucky’s neighbors Illinois, Missouri, and Indiana.

There are two competing rules vying to be Kentucky law. The first is the rule we have in Maryland, the all-or-nothing rule. Under this rule, the compensable injury in the case is death. Under the lost of diminished chance doctrine, the compensable injury would be the lost recovery or survival from cancer.

You can drive a two-ton truck through the difference. Under the former rule, there is no legal liability by a negligent doctor for any injury to the plaintiff unless the plaintiff has a 51% likelihood of survival.

The question is why should a negligent doctor be given a free pass just because she was not 51% responsible? How many billions of dollars do we spend at our grocery stores buying organic food, and at pharmacies, health clubs, and doctors’ offices to improve our chances of avoiding even nonfatal diseases by fractions of percentage points? If someone shaves off a 49% chance of your survival, would anyone be able to say that you were not injured? If you were told you had even a 1% chance of dying next year because of the negligence of someone else, how would you feel? Unharmed?

There are two things worth reading from this case. First, while I could not disagree more with the Kentucky Supreme Court, on page 8-10 of their slip opinion is a very articulate argument on why public policy mandates keeping the 51% rule. (I respect good arguments, even those with which I disagree.)

Second, in the Plaintiffs’ appellate brief—all 71 pages of it—Plaintiffs’ medical malpractice lawyer Ann B. Oldfather of the Oldfather Law Firm does a magnificent job of articulating the insanity, in law and in human terms, of the 51% rule.

In an even more egregious finding last year, the Maryland Court of Special Appeals found in a 2-1 decision in Marcantonio v. Moen that a reduction of 30 percent in the survival chances of a woman with cancer as the result of medical malpractice is not actionable as a matter of Maryland law.

The same conclusions divorced from human experience (and fundamental mathematics) applied Kemper v. Gordon‘s reasoning in this malpractice case. In Marcantonio, the court’s logic is that you must have a 51% decrease in the chance of survival to recover. So, if you have a 99% of survival and the missed diagnosis drops your chances to 80%, no claim can be made for your death even if there is a 95% chance that negligence caused your death. How on earth does that make sense? As Judge Timothy E. Meredith points out in the dissent, basic mathematical principles mandate a different conclusion.

The Maryland Court of Appeals granted certiorari in Marcantonio in April, so we will hopefully soon find out whether they will provide a more logical and just law. (2019 Update: The Maryland high court was of no help and our unjust law still stands.)

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