Appellate Court Rejects Loss-of-Chance Argument for Patient Who Suffered Stroke
News: A patient exhibiting signs of a stroke was examined at a hospital by an emergency physician. However, the physician failed to properly diagnose the stroke, and did not timely administer tissue plasminogen activator (tPA) treatment. The patient subsequently sued, alleging that timely treatment would have lowered the risk of suffering neurological damage and diminished mobility.
The trial court found that state law does not recognize a negligence claim for the mere increase in risk of a serious disease and that the patient failed to provide sufficient evidence that the physician’s negligence caused the patient’s injury. An appellate court confirmed the ruling and stated that any change to the negligence law is the authority of the state legislature rather than the court.
Background: On Aug. 24, 2014, a patient with symptoms of a stroke was transported to a nearby hospital. She arrived at 2 a.m., within the critical three-hour window during which tPA should be administered. The treatment must be administered within three hours of the onset of a stroke (or 4.5 hours for certain eligible patients) for maximum effectiveness. In most cases, strokes cause neurological effects. With a timely administration of tPA, patients have a 40% chance of an improved neurological outcome.
An attending ED physician examined the patient. However, the physician failed to diagnose the patient’s stroke and did not order the administration of tPA within the three-hour window. Furthermore, tPA was not available at the hospital where the patient was treated. A prompt diagnosis would have permitted the patient to be transported to a nearby facility for timely treatment.
The patient filed a medical malpractice action against the physician, alleging that the physician failed to diagnose the stroke, failed to timely treat her, and that these failures diminished her chance of an improved neurological outcome.
The defendant physician sought to defeat the patient’s claim before trial by bringing a motion for summary judgment, a legal procedure that permits a party to seek judgment without a genuine dispute about material facts. The physician challenged the patient’s allegations, claiming that the patient failed to show a likelihood that her injuries were caused by the physician’s actions. The trial court granted summary judgment for the physician, and the patient appealed. The appellate court affirmed the trial court’s decision, explaining that in the state, the loss of chance is not recognized as an independent cause of action. An injured patient must demonstrate sufficient causation between the physician’s actions and the patient’s injury. Thus, the court properly granted summary judgment in favor of the defendant.
What this means to you: This case reveals a potent defense for physicians and care providers: A patient must prove causation when raising a malpractice allegation. A plaintiff must prove that the physician or care provider’s conduct is a substantial factor in causing the harm, which means that it must be more than a remote or trivial factor. However, it does not have to be the only cause of the harm. If the harm would have occurred without the physician or care provider’s conduct, then the conduct was not a substantial factor in causing harm.
In this case, in addition to proving a breach of care, the patient was required to prove that the failure to administer tPA caused the patient’s injury. The patient was unable to prove that, arguing instead that the failure to administer tPA increased her chance of suffering neurological damage. With the defendant physician’s motion for summary judgment, the court reviewed the evidence in the light most favorable to the patient to ensure that she could present evidence to a jury.
However, even with this deferential standard, the court found that the patient could not recover based on the legal theory of “loss of chance” because the state does not recognize such a claim. The court explained that while it was clear that the patient’s stroke caused her neurological injuries, according to the data presented on tPA administration her chances of an improved outcome would only have been 40% had the drug been promptly administered within the three-hour period. The court acknowledged that the physician was negligent in failing to diagnose the stroke, but that negligence was not the proximate cause of the patient’s injury. Because the patient’s chance of an improved outcome was only 40%, it was insufficient to reach the “more likely than not” threshold required under the traditional approach, which is 50% or higher. Had the success rate of tPA been found to be 50% or higher, the patient would have established sufficient proximate causation and the litigation would have proceeded to a jury.
This case also reveals the importance of properly evaluating a patient’s needs and transferring patients who require greater needs than available at the care provider’s facilities. Here, the patient likely would have been transported to a hospital where ED physicians were credentialed to administer tPA had the family called 911 for a paramedic response. Paramedics are trained to recognize the signs and symptoms of strokes and also are aware of which facilities in the area can provide the required level of care. Many people assume that all hospitals and EDs employ staff with the same levels of expertise and provide similar care, but services offered at locations may vary greatly. The physician’s failure to timely diagnose prevented the appropriate transfer to a nearby facility that could have provided timely treatment with tPA. That failure may constitute negligence if a reasonable physician in the same or similar circumstances would not have made that error.
The appellate court affirmed that the physician acted negligently in not timely diagnosing the patient, and that tPA should have been administered promptly, but that the patient’s neurological impediments were caused by the stroke. Because the chance of an improved outcome did not meet the 50% and above threshold, the trial court properly granted summary judgment for the physician. The plaintiff brought an additional argument that she had suffered a separate type of injury because of the physician’s negligence: a loss of chance to a better neurological outcome. First, the court found that even if the cause of action of “loss of chance” were recognized in the state, by the same analysis for the patient’s above, the patient would have only had a 40% chance of a better outcome, and the proximate causation element would not have been satisfied. In states that recognize the “loss of chance” theory, an injured patient may recover only in instances in which the chance of a better outcome is more than 50%. Under such circumstances, a patient would be entitled to recover the full value of the healthier outcome. However, when the chance of a better outcome is less than 50%, a patient is not entitled to any recovery. Thus, the patient in this case was unable to recover despite the physician’s negligent conduct.
If named in a medical malpractice action, a physician, hospital, or care provider should explore all potential defenses, including challenging the applicable duty of care or arguing that the care provider’s conduct was not the actual or proximate cause of the patient’s injury. Care providers should work closely with counsel to evaluate the efficacy of such defenses, recognizing that laws may vary by state.
REFERENCE
Decided June 3, 2019, in the North Carolina Court of Appeals, Case Number COA18-888.
This case reveals a potent defense for physicians and care providers: A patient must prove causation when raising a malpractice allegation. A plaintiff must prove that the physician or care provider’s conduct is a substantial factor in causing the harm, which means that it must be more than a remote or trivial factor. However, it does not have to be the only cause of the harm. If the harm would have occurred without the physician or care provider’s conduct, then the conduct was not a substantial factor in causing harm.
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