December 22, 2020

The Supreme Court of North Carolina (“North Carolina Supreme Court”) declined to adopt the loss of chance doctrine in medical malpractice cases in its opinion filed on December 18, 2020. The North Carolina Supreme Court stated, “we are asked to change our existing jurisprudence regarding proximate causation and to establish a new cause of action, “loss of chance.” We decline to make these significant changes because they are best left to the legislative branch.”

“Specifically, this case is about whether a patient who experienced a stroke failed to show, more likely than not, that the physician’s negligence caused her diminished neurological function [the evidence in the light most favorable to plaintiff only showed a 40% chance that defendant’s negligence caused plaintiff’s injury. In other words, there was only a 40%
chance that plaintiff’s condition would have improved if defendant had properly diagnosed plaintiff and timely administered tPA]. Further, this case raises the question of whether the patient’s “loss of chance” at a better outcome following her stroke is a separate type of injury for which she could recover in medical malpractice action. Plaintiff concedes that she failed to show that it was more likely than not that defendant’s negligence caused her diminished neurological function. Nonetheless, plaintiff argues her claims should stand because defendant’s negligence diminished her likelihood of full recovery, thus proximately causing her injury. Further, plaintiff argues that her “loss-of-chance” claim is a separate claim. We now affirm the decision of the Court of Appeals, which affirmed the trial court’s decision to grant summary judgment to defendant.”

Loss Of Chance Doctrine

A plaintiff cannot recover for a loss of less than a 50% chance under “the ‘traditional’ approach” applied to loss-of-chance claims in other jurisdictions, but a plaintiff may recover the full value of a healthier outcome if he or she can show that, more likely than not, the outcome could have been achieved absent the defendant’s negligence. In the present case, the evidence showed that if the plaintiff had received the tPA medication in time and if the tPA medication had worked in her favor, then her chances for a better recovery would have been greater. However, the 40% total chance of an improved neurological outcome in the present case did not meet the “more likely than not,” or greater than a 50% chance, threshold for proximate cause in a traditional medical malpractice claim.

A dissenting opinion stated, “In contrast to the majority, I would recognize that when a physician’s negligent conduct “reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient” by destroying “something of value, even if the possibility of recovery was less than even prior to the physician’s tortious conduct” … Extending existing common law principles to allow Ms. Parkes’ claim would serve the predominant goal of tort law by providing a remedy to a “victim of medical malpractice” who otherwise lacks “any remedy at all if the common law does not provide one.””

Source Parkes v. Hermann, No. 241PA19.

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