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Negligent Anesthetization of Patient; Lost Chance of Survival


A 79-year-old woman fractured her elbow. She was scheduled to undergo surgery on her elbow but when she checked in for surgery, the nurse anesthetist noted the woman had wheezy breathing, shortness of breath, low blood oxygen saturation, and excruciating pain. The nurse ordered oxygen, a drug to open the woman’s airway, and a drug to alleviate her pain. Then, after examining her and conferring with an internist and the orthopedist that was to perform the surgery, the nurse anesthetist anesthetized the woman for surgery. During surgery the woman suffered a pulmonary embolism that resulted in a terminal cardiac arrest.

 

The woman’s husband sued the hospital, doctors, and nurse anesthetist raising medical negligence and wrongful death claims. The complaint specified that the nurse anesthetist’s decision to anesthetize the woman instead of refer her for proper care proximately caused her injury and death. The claims against the doctors were dismissed. The hospital and nurse anesthetist put forth the case theory that the doctors were not negligent and, because the nurse anesthetist relied on the doctors and acted jointly with them as part of a team, the nurse was equally not negligent.

 

The Grant Superior Court instructed the jury not to consider where the doctors were negligent. The trial court also instructed the jury on a medical patient’s lost chance of survival. The jury returned special verdict answers that found both that the nurse anesthetist's negligence proximately caused the woman a 70 percent loss in chance of survival and that the nurse anesthetist's negligence did not proximately cause the woman's death. The jury also found that the nurse anesthetist was the apparent agent of the hospital. The jury awarded over $20,000 in damages to the woman’s estate and $1.3 million dollars to the woman’s husband. The trial court entered a $1,320,481.22 judgment for respondents without applying a 30 percent reduction.

 

The Court of Appeals of Washington, Division 3, affirmed. The court held that the trial court did no err in instructing the jury on the medical patient's lost chance of survival. Specifically, the court held that a plaintiff may argue the lost chance doctrine where the defendant's negligence reduced the decedent's chance of survival by greater than 50 percent, substantial evidence supported a lost chance instruction in this case, and the plaintiffs did not need to plead a lost chance of survival as a separate cause of action. Additionally, the court found that the jury’s special verdict answers that found both that the nurse anesthetist's negligence proximately caused the woman a 70 percent loss in chance of survival and that the nurse anesthetist's negligence did not proximately cause the woman's death were not irreconcilably inconsistent.

 

The court concluded that a plaintiff may not argue the lost chance doctrine where the defendant's negligence reduced the decedent's chance of survival by greater than 50 percent. A medical patient's lost chance of survival or a better outcome is an injury distinct from death or disability. The lost chance doctrine requires a medical patient to prove the defendant breached a duty owed to the patient and, thereby, proximately caused the patient to lose a chance of survival or a better outcome. Under the lost chance doctrine, a plaintiff may recover something even if he or she proves loss of a chance less than or equal to 50 percent. Where the defendant's negligence reduced the decedent's chance of survival by less than or equal to 50 percent, the loss of a chance is the injury, and the plaintiff receives proportional compensation under the lost chance doctrine. However, where the defendant's negligence reduced the decedent's chance of survival by greater than 50 percent, as a matter of law, the death remains the injury and the plaintiff receives an all-or-nothing recovery under traditional tort principles. The court held that, as a matter of law, a greater than 50 percent reduction in the decedent's chance of survival is the same as proximate cause of the decedent's death under traditional tort principles.

 

The court held that substantial evidence supported the jury instruction on the woman's lost chance of survival. A trial court must instruct the jury on a party's case theory if substantial evidence supports it. “Substantial evidence” in this context is a sufficient quantum to persuade a fair-minded, rational person of the truth of a stated premise. The court reasoned that a trial court may instruct the jury on a medical patient's lost chance of survival if the evidence shows the defendant's negligence reduced the decedent's chance of survival by less than or equal to 50 percent.

 

The court noted that the plaintiff’s expert testified that a patient presenting symptoms of a pulmonary embolus and no complicating terminal illness will have about a 90 percent chance of survival if properly diagnosed and treated. The expert also testified that properly diagnosing and treating a pulmonary embolus may reduce patient mortality from 70 or 80 percent to 10 or 20 percent. The court held that the jury could reasonably infer that properly diagnosing and treating a pulmonary embolus increases patient survival from 20 or 30 percent to 80 or 90 percent. The expert also testified that the woman presented symptoms of a pulmonary embolus and no complicating terminal illness and concluded that she would have had a 90 percent chance of survival if properly diagnosed and treated. The court held that based on the expert’s conclusion, the jury could reasonably infer that the nurse anesthetist's negligent decision to anesthetize the woman instead of refer her for proper care reduced her chance of survival by 50 to 70 percent. The court reasoned that because the 51 to 70 percent figures rise above the balance of probabilities, they constitute substantial evidence to support respondents' case theory under traditional tort principles. Because the 50 percent figure falls below the balance of probabilities, it constitutes substantial evidence to support respondents' case theory under the lost chance doctrine. Therefore, the court concluded that the trial court did not abuse its discretion in finding the evidence supported a lost chance instruction.

 

The woman's estate did not have to plead a lost chance of survival as a separate cause of action in order to recover on a lost chance of survival theory. A lost chance of survival was part of the wrongful death claim based on medical negligence. The facts alleged in the complaint, if proved, would entitle the woman’s estate and husband to some relief under the wrongful death statute, through either the lost chance doctrine or traditional tort principles. The complaint notified the defendants of the wrongful death claim based on medical negligence and related resulting injuries.

 

The court held that the conflict between the jury's special verdict answers was reconcilable. The jury's special verdict answers found both that the nurse anesthetist's negligence proximately caused the patient a 70 percent loss in chance of survival and that the nurse anesthetist's negligence did not proximately cause the patient's death. Because lost chance of survival was an actionable injury distinct from death, the jury could generally find proximate cause of the former without finding proximate cause of the latter.

 

See: Estate of Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, P.L.L.C., 2013 WL 6037098 (Wash.App. Div. 3, November 14, 2013) (not designated for publication).

 

See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

See also Medical Law Perspectives, December 2013 Report (to be published Dec. 4, 2014):

When Blood Clots Cause Injury or Death

 

 

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