Maryland’s Highest Appellate Court Holds Terminal Patient Cannot Sue For Medical Malpractice For Shortened Life Expectancy

Maryland’s Highest Appellate Court Holds Terminal Patient Cannot Sue For Medical Malpractice For Shortened Life Expectancy: A woman diagnosed with Stage IIIC breast cancer in her left breast was treated with a left mastectomy, chemotherapy, and radiation therapy, after which a series of follow-up PET/CT scans were negative for metastatic disease. Over four years later, she underwent a new round of diagnostic testing that included an abnormal PET/CT scan that showed a new and potentially cancerous lesion on her clavicle that her oncologist reviewed but failed to disclose to the woman or conduct further testing. Three years after her abnormal scan, the woman fell and injured her right shoulder. A bone scan showed a malignant bone lesion on her right clavicle. An open biopsy showed that the lesion was metastatic adenocarcinoma compatible with a breast primary — i.e., her left breast cancer metastasized to her clavicle. Metastatic breast cancer is fatal. The woman continued treatment but passed away on June 10, 2017.

The woman’s husband filed a wrongful death and survival action lawsuit against the oncologist and others, arguing that the loss of chance doctrine, which Maryland does not recognize, does not apply because he sought to recover for a concrete time—approximately two and a half years—not for his wife’s natural life expectancy (the plaintiff argued that had the defendant oncologist started treating his wife immediately after she had the abnormal scan, she would have lived an additional two and a half years).

Loss Of Chance Doctrine

The loss of chance doctrine permits recovery for the loss of chance resulting from a defendant’s alleged wrongful or negligent conduct. In the context of medical malpractice, the loss of chance doctrine permits a claimant to recover where a physician’s breach of the standard of care caused the loss of a statistical chance of survival or of a better outcome. The Court of Appeals of Maryland, Maryland’s highest appellate court, has rejected the loss of chance doctrine in Maryland.

In its July 15, 2020 opinion in the present case, the Court of Appeals stated: “Here, the undisputed facts demonstrate that Ms. Wadsworth’s metastatic breast cancer caused her death. Depositions from Dr. Stark and Dr. Schneider revealed that once breast cancer metastasizes, “there is no cure” and “no one . . . survives metastatic breast cancer[.]” Neither party presented experts to opine that Ms. Wadsworth’s likelihood of survival, absent Dr. Sharma’s alleged negligence, exceeded fifty percent or that she would have survived if Dr. Sharma started treating her on the date that she produced the abnormal scan. According to the undisputed opinions from Dr. Stark and Dr. Schneider, Ms. Wadsworth did not have a greater than fifty percent chance of survival, absent Dr. Sharma’s alleged negligence. Without evidence to dispute that Ms. Wadsworth had a greater than fifty percent chance of survival, Mr. Wadsworth, as a matter of law, cannot meet his burden to prove by a preponderance of the evidence that Dr. Sharma’s alleged negligence caused Ms. Wadsworth’s death.”

The Court of Appeals held: “we hold that Mr. Wadsworth pleaded a loss of chance case, which is not recognized in Maryland. Consistent with the plain language and legislative history of CJ § 3-902(a), principles of stare decisis, and our decisions in Weimer and Fennell, we hold that the plaintiff in a wrongful death claim bears the burden of proving, by a preponderance of the evidence, that the defendant’s negligence proximately caused the decedent’s death.”

A strongly worded dissent to the majority’s opinion stated: “Put simply, this is not a loss of chance case. Loss of chance of survival is defined as “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.” Marcantonio, 406 Md. 395, 415, 959 A.2d 764, 776 (2008) (quoting Fennell, 320 Md. at 781, 580 A.2d at 208). The evidence in this case demonstrates that the failure to treat decreased Ms. Wadsworth’s chance of survival of six years and eight months from greater than fifty percent to less than fifty percent. Stated differently, it was more likely than not that Ms. Wadsworth would have survived for at least six years and eight months but for the negligence in this case. The Wadsworths are not seeking damages for a mere possibility of survival but instead for the probability that a failure to diagnose caused Ms. Wadsworth to die in June 2017 at a time that she otherwise would not have … in addition to being at odds with Maryland case law, the failure to recognize this cause of action presents significant concerns. The majority opinion sends a message to healthcare providers that there is less accountability for negligently treating individuals suffering from illnesses from which they will not recover, even as medicine advances and periods of survival become longer. Considering that forty percent of men and women will be diagnosed with cancer at some point in their lives, the Majority’s approach may well close the door to recovery for many Maryland families who have relatives who may experience a breach in the standard of care in medical treatment.”

Source Wadsworth v. Sharma, No. 40, September Term, 2021.

If you or a loved one may have been injured (or worse) as a result of medical malpractice in Maryland, you should promptly find a Maryland medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Maryland medical malpractice case, if appropriate.

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This entry was posted on Monday, July 18th, 2022 at 5:23 am. Both comments and pings are currently closed.

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