In its decision filed on June 6, 2013, the New York Court of Appeals (“Court of Appeals”) declined to decide if the “loss-of-chance” theory of tort recovery is available in New York medical malpractice cases. The loss-of-chance doctrine allows recovery to patients “for deprivation of the opportunity of more beneficial treatment and the resulting gain in life expectancy or comfort, although the evidence fails to establish a reasonable probability that without defendant’s negligence a cure was achievable.”
The Underlying Facts
In 2005, an 83-year-old woman was transported to the hospital after her 89-year-old husband found her unresponsive and on the floor of their home. At the hospital, the emergency room physician determined that the woman had difficulty breathing and may have suffered a stroke. Attempts were made to insert an endotracheal tube in her throat to help her breathe during which the tube was erroneously inserted into her esophagus. After several failed attempts at intubation, an anesthesiologist successfully intubated her.
During the repeated efforts to intubate the woman, the emergency room physician observed a subcutaneous emphysema under the woman’s skin but it was not until days later that physicians finally discovered that the woman’s esophagus had been perforated during intubation. Surgical attempts at repair proved unsuccessful. During the three remaining years of her life until her death from an unrelated cause, the woman was unable to consume foods or liquids by mouth and she required a feeding tube.
The husband subsequently filed a medical malpractice lawsuit on behalf of his wife’s estate for her pain and suffering and also for his loss of consortium. A New York medical malpractice jury found the emergency room physician to have committed medical malpractice and awarded $1,000,000 ($500,000 for the woman’s pain and suffering and $500,000 for her husband’s loss of consortium claim). On appeal, the New York Appellate Division unanimously affirmed after the plaintiffs stipulated to a reduction of the loss of consortium award to $200,000.
The medical malpractice defendant appealed and contended that the trial court improperly instructed the jury on the loss-of-chance theory of liability because New York State has not yet adopted the loss-of-chance doctrine. The medical malpractice plaintiffs contended on appeal that the defendants failed to preserve its challenge to the viability of the loss-of-chance recovery, with which the Court of Appeals agreed, stating, “the sum and substance of defendants’ argument before the trial judge was that plaintiff failed to present evidence in support of the charge which sought to instruct the jury on a negligence theory of loss-of-chance, and that the jury charge erroneously reduced the plaintiffs’ burden of proof and relaxed the standard for causation. Defendants’ broad challenge to the loss-of-chance doctrine is unpreserved and is not properly before the Court.”
Source: Marcia A. Wild, et al., Respondents v. Catholic Health System, &c., et al., Defendants, Buffalo Emergency Associates, LLP et al., Appellants. No. 97.
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