Federal Appellate Court Revives West Virginia Loss Of Chance Medical Malpractice Case

Court Revives West Virginia Loss Of Chance Medical Malpractice Case: The United States Court of Appeals for the Fourth Circuit (“Federal Appellate Court”) stated in its May 3, 2022 published Opinion: “This appeal concerns the “loss of chance” provision of West Virginia’s Medical Professional Liability Act (MPLA). The district court interpreted that provision as requiring a plaintiff to prove that the defendant’s negligence caused a greater than 25 percent “change in outcome” between the patient’s chance of survival had the standard of care been followed and her chance of survival due to the defendant’s negligence. We disagree. The text of the law requires simply that a plaintiff prove “that following the accepted standard of care would have resulted in” a greater than 25 percent chance of survival. W. Va. Code § 55-7B-3(b). Separately, a plaintiff must also prove that the defendant’s failure to follow the standard of care “increased the risk of harm to the patient,” which was “a substantial factor in bringing about the ultimate injury.” Id. We accordingly vacate the district court’s decisions and remand for further proceedings.”

The Underlying Facts

On March 10, 2016, Edna McNeely was admitted to Bluefield Regional Medical Center (BRMC) to undergo an index diagnostic cardiac catheterization. After the procedure, McNeely developed a retroperitoneal bleed. As her condition deteriorated, the decision was made to transfer McNeely to Carilion Roanoke Memorial Hospital for cardiothoracic surgery, which was not available at BRMC. Medical records exchanged during discovery revealed that the decision to transfer McNeely was made at 9:35 p.m. on March 11. But McNeely did not arrive at Carilion Roanoke until 12:53 a.m. on March 12. She died the next day from septic shock due to the retroperitoneal bleed.

Plaintiff Janet Graham, administratrix of McNeely’s estate, filed a West Virginia medical malpractice wrongful death lawsuit, alleging that BRMC breached its duty of care by failing to timely transfer McNeely to Carilion Roanoke. According to Graham, facilities like BRMC that do not perform on-site cardiothoracic surgery are required to expeditiously transfer coronary intervention patients pursuant to established, written protocols. Graham’s liability expert, Dr. Scott J. Denardo, opined that the standard of care applicable in this case was a transfer time of one hour in accordance with the West Virginia Cardiac Catheterization Standards. At his deposition, Dr. Denardo also opined that at 9:30 p.m. on March 11—five minutes before the decision was made to transfer McNeely to Carilion Roanoke—McNeely’s “chance of survival was at least 50 percent or more had she been transferred right at that point.” He then explained, “I think about every hour, her chance of survival decreased by about 10 percent. So at 10:30, it was more like 40 percent, at 11:30, 30 percent. And that’s just a rough estimate.”

“Loss of Chance” (W. Va. Code § 55-7B-3(b))

W. Va. Code § 55-7B-3(b) states: “If the plaintiff proceeds on the “loss of chance” theory, i.e., that the health care provider’s failure to follow the accepted standard of care deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient, the plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.”

The Federal Appellate Court stated, “The grammar and syntax of this provision reveal that it requires two distinct evidentiary showings. The plaintiff must prove the elements within the explanatory clause following the “i.e.”—that the defendant’s failure to follow the standard of care “deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury.” And the plaintiff “must also prove” that following the standard of care “would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.””

“She must show that the patient had a “greater than twenty-five percent chance” of survival (or improved recovery) if the defendant had followed the standard of care. This additional requirement forecloses liability for patients who were unlikely to survive or recover even if the defendant had done everything right. Nowhere does the statute require a plaintiff to prove that the malpractice caused a greater than 25 percent change in outcome. The district court erroneously formulated such a requirement by merging the “substantial factor” element with the “greater than 25 percent chance” element. That reading fails to accord significance to “every” “word or part” of the statute … both by collapsing distinct elements and by discounting the adverb “also” as used in the provision … Proving that the patient had a greater than 25 percent chance of survival if the defendant had followed the standard of care is necessary but not sufficient to impose liability. The plaintiff must also prove that the defendant’s failure to follow the standard of care deprived the patient of a chance of recovery or increased the risk of harm, which was “a substantial factor in bringing about the ultimate injury.””

The Federal Appellate Court held: “We conclude that a plaintiff proceeding under West Virginia’s “loss of chance” theory of medical malpractice must establish, “to a reasonable degree of medical probability,” that if the standard of care had been followed, the patient would have had a greater than 25 percent chance of survival or improved recovery. W. Va. Code § 55-7B3(b). A plaintiff does not need to prove that failure to follow the standard of care caused a greater than 25 percent change in the patient’s prognosis. But, as the law states, a plaintiff must also prove that the negligent care “deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient.” Id. Because the district court applied the wrong standard, we vacate its decisions awarding summary judgment to BRMC and denying Graham’s motion to reconsider. We remand for further proceedings consistent with this opinion.”

Source Graham v. Dhar, M.D., No. 20-1793.

If you or a loved one have suffered serious harm as a result of medical negligence in West Virginia or in another U.S. state, you should promptly find a West Virginia medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Monday, July 11th, 2022 at 5:22 am. Both comments and pings are currently closed.

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