The Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, held in its unreported opinion dated June 21, 2020 in a Maryland medical malpractice wrongful death case involving the failure to diagnose oral cancer, “because appellants [plaintiffs] never sought “loss of chance” damages, the trial court erred in granting judgment against appellants based on the loss of chance doctrine. We further conclude that appellants produced sufficient evidence in their case in chief to satisfy the causation element of their survival and wrongful death claims. Accordingly, we vacate the judgment and remand for a new trial.”
The Underlying Facts
The plaintiffs’ causation expert testified during the Maryland medical malpractice trial that the decedent was suffering from oral squamous cell carcinoma as early as February 8, 2013, when the defendant otolaryngologist performed the first biopsy, and that the decedent’s oral cancer would have been in Stage 1 had it been properly diagnosed at that time, with his prognosis for survival between 70 and 80 percent. The expert testified that by the time doctors diagnosed the decedent’s cancer in late July and early August 2014, the cancer was in Stage 4-A, and the decedent’s five-year survival rate had dropped to “around 50, 55 percent.” The expert testified that, had the decedent’s oral cancer been diagnosed in February of 2013, “it’s more likely than not that he would not have had a recurrence[,]” and would not have died within the following five years.
The defense argued that because the plaintiffs’ expert’s testimony that the decedent’s chance for survival still remained greater than 50 percent, the plaintiffs could not show that it was “more likely than not that the defendant’s conduct [was] the cause of the wrongful death.” The defense further argued that the plaintiffs had only proven a “loss of chance” of survival, but had not proven that the alleged negligence caused the decedent’s death, and that the “loss of chance” argument applied to both the survival claim and wrongful death claims.
The trial court granted the defense motion for judgment as to all counts, and the plaintiffs appealed.
Maryland Appellate Court Opinion
Loss Of Chance Doctrine
The Maryland Appellate Court stated, “we agree with appellants that the trial court erred in dismissing the claims pursuant to the “loss of chance” doctrine,” explaining that the “loss of chance” of survival refers to decreasing the chance of survival as a result of negligent treatment where the likelihood of recovery from the preexisting disease or injury, prior to any alleged negligent treatment, was improbable, i.e., 50% or less; the loss of chance may include loss of chance of a positive or more desirable medical outcome, loss of chance of avoiding some physical injury or disease, or a loss of chance to survive.”
The Maryland wrongful death statute requires a plaintiff seeking to recover damages under the statute to prove, by a preponderance of the evidence, that the defendant’s negligence proximately caused the decedent’s death. Accordingly, wrongful death claims where the defendant’s alleged negligence deprived the plaintiff of less than a 50 percent probable chance of survival are not compensable under Maryland Law. In Maryland, where the plaintiff’s chance of surviving an underlying disease or medical condition is already below 50 percent prior to any negligence, a plaintiff cannot recover damages related to any loss of chance of survival because the underlying disease or condition was the likely cause of the plaintiff’s death irrespective of any negligence.
The Maryland Appellate Court stated that in the case it was deciding, the evidence indicates that the decedent had an alleged 70 to 80 percent chance of survival prior to the defendants’ alleged negligence. “Because [Mr. Santiago’s] alleged chance of survival exceeded 50 percent, the loss of chance doctrine is inapplicable to the [appellants’] claims” … “Moreover, as in Marcantonio, appellants did not allege a loss of chance claim in their complaint, nor did they ever make a loss of chance claim at trial. Indeed, they affirmatively disavowed any such claim. Accordingly, the trial court erred when it struck appellants’ survival and wrongful death claims on the basis that they were “loss of chance” claims precluded by Maryland precedent.”
The Maryland Appellate Court held: “The trial court erred when it relied on the “loss of chance” doctrine in dismissing appellants’ claims. Not only did appellants never seek “loss of chance” damages, but the doctrine is inapplicable where the chance of survival prior to any alleged negligence exceeds 50 percent as it did here. Additionally, the evidence adduced at trial regarding causation for both the survival and wrongful death claims was legally sufficient to survive a motion for judgment. Accordingly, we vacate the trial court’s judgment in favor of appellees and remand for a new trial.”
Source Johnson v. Golden, No. 939 September Term, 2019.
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