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In Texas, Lost Chance Doctrine Inapplicable When Defendant's Alleged Negligence Caused Patient’s Death but Was Unrelated to Pre-Existing Conditions


A man suffered from recurrent colorectal cancer and thrombotic thrombocytopenic purpura (“TTP”). He was admitted to the hospital for treatment. A Quinton catheter was implanted in his right internal jugular vein. He was administered pain medication and sedatives. He was identified as being at a high risk of falling. Hospital protocol dictated that bed alarms were to be activated and frequent monitoring conducted for patients at a high risk of falling. A bed alarm makes a beeping noise if the patient gets out of bed, which alerts the nurse to check on the patient.

 

One night, the man was given sedatives and his bed alarm was not activated. Subsequently he was given a laxative to treat constipation and the nursing notes indicated he was to be monitored. For three hours no monitoring took place. Three hours after the administration of the laxative, a nurse discovered the man lying in a pool of blood on his bathroom floor with his pants pulled down. The Quinton catheter had been removed and was found on the table at the foot of the decedent's bed. The decedent had bled to death from the hole in his neck where the catheter had been.

 

The decedent’s wife and two sons sued the hospital for wrongful death. The plaintiffs’ medical expert testified that the most logical explanation for the man’s death was that he removed his own catheter when he got out of bed sometime after the laxative was administered. The medical expert said that if the bed alarm had been activated, as per hospital protocol, then the nursing staff would have been alerted and responded by going to his room. Had they responded in a timely fashion, it would have been a simple procedure to stop the bleeding from the Quinton catheter site and the man would certainly have survived. Further, if the man had been monitored more frequently, then his bleeding would have been observed and corrected and it would have been unlikely that he would have died.

 

The hospital moved for summary judgment, on the ground that plaintiffs failed to produce sufficient evidence of causation. The hospital argued that because plaintiffs failed to show that decedent would have survived his underlying cancer and TTP, they could not, as a matter of law, show that the alleged negligence of the nursing staff was a proximate cause of his injuries and death. The magistrate judge granted summary judgment in favor of the hospital. The judge reasoned that the lost chance doctrine applied to bar recovery. In Texas, the lost chance doctrine bars recovery where preexisting illnesses or injuries have made a patient's chance of avoiding the ultimate harm improbable even before the allegedly negligent conduct occurs. In other words, the patient would die or suffer impairment anyway, even if a defendant’s negligence has deprived the patient of a chance of avoiding the harm. Here, the man would have died of colorectal cancer or TTP regardless of whether the hospital’s failure to activate the bed alarm and more frequently monitor the patient deprived him of a chance of not dying. The plaintiffs appealed.

 

The United States Court of Appeals for the Fifth Circuit, applying Texas law, held that the plaintiffs' evidence was sufficient to create an issue of fact as to whether the hospital’s negligence was the proximate cause of decedent's death. Therefore, the lower court erred in granting the hospital’s motion for summary judgment. Under Texas medical malpractice law, a plaintiff must present evidence establishing that it is more likely than not that the ultimate harm or condition resulted from the defendant’s negligence.

 

The Fifth Circuit held that the lost chance doctrine did not apply because the hospital’s alleged negligence was unrelated to the man’s underlying condition and there was evidence that his death was caused by that negligence. Alternatively, the underlying condition could be material to the decedent's life expectancy and to damages recoverable by plaintiffs, but that does not bar recovery. The court held that the plaintiffs were not required to show that the decedent had a greater than fifty percent chance of surviving his cancer and TTP in order to prove causation where the defendant's alleged negligence caused him to bleed to death and was unrelated to his pre-existing conditions.

 

See: Smith v. Christus Saint Michaels Health System, 2012 WL 5489397 (C.A.5 (Tex.), November 13, 2012) (not Selected for publication in the Federal Reporter).

 

 

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