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Loss of Chance: Wadsworth v. Sharma
The Baltimore Medical Malpractice Lawyer Blog, a comprehensive resource for Maryland appellate decisions in medical malpractice cases, presents a case of significant legal importance. In this post, we delve into the doctrine of loss of chance, as explored in Wadsworth v. Sharma, 479 Md. 606 (2022).
Factual Background
The loss of chance doctrine allows a plaintiff to recover for the defendant’s negligence that caused the loss of chance of a better outcome. Maryland has rejected this doctrine, and the Court of Appeals revisited it in Wadsworth. (Op. at 1).
The plaintiff was a breast cancer survivor who was being monitored and tested following her recovery. (Id. at 2-3). The plaintiff had an abnormal scan showing a potentially cancerous lesion on her clavicle. Still, the defendant doctor didn’t tell her or schedule further testing. Three years later, the plaintiff fell, and a scan and biopsy showed a malignant lesion on her clavicle, which had metastasized from her breast cancer. It was the cause of the plaintiff’s passing. (Id. at 3).
The family brought a wrongful death case in the Circuit Court for Baltimore County. (Id. at 3-4). The defense moved for summary judgment because Maryland does not recognize loss of chance. (Id. at 4). The circuit court granted the motion, and the Court of Special Appeals affirmed. (Id. at 5).
Court of Appeals Analysis of the Loss of Chance Doctrine
The plaintiff argued that if the defendant had started treatment after the abnormal scan, the plaintiff would have lived another 2 ½ years (Id. at 7).
The court examined CJ 3-902(a), which applies when a wrongful act causes the death of another. Maryland courts have consistently required proximate causation, which ensures that a defendant is not liable when there are two or more equally likely causes of injury, but the defendant is only responsible for one. (Id. at 12). Maryland courts have declined to adopt the loss of chance doctrine on multiple occasions since 1987, and the General Assembly has yet to act on adopting the doctrine. (Id. at 13-14). The court concluded that the legislature is the better place to address significant policy decisions such as this one. (Id. at 13).
The court also held that stare decisis (stand by things decided) favored refraining from recognizing the loss of chance doctrine. (Id. at 21-23).
The cause of the plaintiff’s death was metastatic breast cancer. She did not have an expert to opine that absent the malpractice, she would have had a greater than 50% chance of survival. Without that evidence, the plaintiff could not prove the defendant’s negligence was the cause of death. (Id. at 23-24). The court affirmed summary judgment for the defense. (Id. at 25).
Dissent
The dissenting opinion in the Wadsworth case argued that the loss of chance doctrine did apply. They pointed to the expert testimony that suggested the patient would have lived an additional 2 ½ years If not for the doctor’s negligence, a chance of survival greater than 50%. (Dissent at 1-2).
The dissent distinguished past cases where the court did not allow the plaintiffs to sue for a loss of the chance of survival that was less than 50%. On the contrary, in Wadsworth, the patient survived the malpractice but was deprived of a better than 50% chance of living an additional 2 ½ years. (Id. at 6-7).
Commentary by the Baltimore Medical Malpractice Lawyer on the Loss of Chance Doctrine
The majority and dissenters in the Wadsworth case had differing views on whether it was a loss of chance case. However, the majority’s conclusion that it was indeed a loss of chance case, aligns with the traditional understanding of Maryland medical malpractice law.
I have always understood that in Maryland medical malpractice, a plaintiff bringing a wrongful death case for delayed diagnosis of cancer had to prove that in the absence of the malpractice, the plaintiff would have had a greater than 50% chance of surviving the cancer. The malpractice had to have caused the chance of survival to go below 50%. This requirement was necessary to satisfy the requirement that malpractice be the proximate cause of death. These matters were provable by medical statistics on cancer survival rates by cancer stage.
In Wadsworth, at the time of the malpractice, the plaintiff’s cancer had already metastasized. As a result, her chance of surviving the cancer was less than 50% before the malpractice. Therefore, she could not prove that the malpractice was the proximate cause of her death. She could not establish a wrongful death claim.
The Dissent
The dissent claims that the plaintiff could establish a wrongful death claim because she had expert testimony that if there had not been medical malpractice, she had a greater than 50% chance of living past the date she died. She would have likely lived another 2 ½ years. The dissent distinguished two prior Maryland loss of chance cases because, in those cases, the plaintiff’s loss of chance of survival would not have extended their lives.
The dissent may have been correct in that distinction, but I believe that it merely established two types of loss-of-chance cases. I do not believe the distinction meant that Wadsworth satisfied the wrongful death causation requirement.
In Wadsworth, the plaintiff’s expert’s testimony did not establish that the malpractice was the cause of the plaintiff’s death. It merely established that it was the cause of her dying of cancer earlier than if the malpractice had not happened. That seems to be a loss of chance.
I agree with the dissent that these claims should be recognized. Medical malpractice should be compensable for the loss of 2 1/2 years of life. As medical technology continues to improve, cases may involve longer periods.
The Legislature
However, the majority’s stance that any change should be legislated is a reasonable one. The General Assembly, as the creator of the wrongful death cause of action, is in a prime position to revisit Maryland’s policy. With the majority of states allowing compensation for loss of chance claims, there is hope for a more comprehensive approach to medical malpractice in Maryland.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.