Baer v. Regents of the University of California
1999 NMCA 005, 972 P.2d 9, 126 N.M. 508 (1998)
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Rule of Law:
A plaintiff may recover damages for a lost chance of survival due to medical negligence, even if the patient's initial chance of survival was less than 50%. The compensable injury is redefined as the destruction of the chance of survival itself, not the ultimate death, but the plaintiff must still prove by a preponderance of the evidence that the defendant's negligence proximately caused this loss of a chance.
Facts:
- Helmut Baer, a nuclear physicist at Los Alamos National Laboratories (LANL), was required to undergo periodic physical examinations as part of his employment.
- During his 1985 exam, chest x-rays revealed a lesion in his right lung, which was interpreted as benign a year later with a recommendation for periodic follow-up x-rays.
- Follow-up exams through 1988 showed no changes in the lesion.
- In July 1989, Baer was examined by a physician’s assistant, James Pederson, who did not order a chest x-ray and offered no medical advice concerning the lesion.
- A year later, in 1990, Baer was independently diagnosed with large cell carcinoma.
- Despite subsequent medical treatment, Baer died from the cancer in October 1991.
Procedural Posture:
- Helmut Baer's widow, as the personal representative of his estate, filed a wrongful death lawsuit in district court against the Regents of the University of California.
- The case proceeded to a jury trial.
- At the close of the Plaintiff's case-in-chief, the Defendant moved for a directed verdict.
- The district court granted the Defendant's motion for a directed verdict, concluding that the Plaintiff had failed to prove that the alleged negligence was the proximate cause of any injuries.
- The Plaintiff (appellant) appealed the district court's directed verdict to the New Mexico Court of Appeals.
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Issue:
Does a medical professional's negligent failure to diagnose a terminal illness create liability for the patient's resulting loss of a chance of survival, even when the patient's chance of survival was less than 50% prior to the negligence?
Opinions:
Majority - Bosson, Judge.
Yes. A medical professional's negligence can create liability for a patient's lost chance of survival, even if that chance was less than 50%. This approach redefines the compensable injury from the patient's death to the loss of a measurable chance to survive, which is consistent with modern tort theory. By narrowing the injury to the lost chance, the traditional standard for proximate cause is maintained; the plaintiff must still prove that the defendant’s negligence, more likely than not, caused the loss of that specific chance. The court adopts this 'loss of a chance' doctrine, aligning with the majority of jurisdictions and principles from the Restatement (Second) of Torts, because it avoids the harsh, all-or-nothing outcome of the traditional rule which denied recovery to anyone with less than a 51% chance of survival. However, in this specific case, the Plaintiff failed to meet the evidentiary burden. The Plaintiff's expert could not testify to a reasonable degree of medical probability that an x-ray in 1989 would have detected Baer's cancer, admitting such a conclusion would be 'absolutely pure speculation.' Without evidence that the negligent failure to order an x-ray proximately caused a reduction in Baer's chance of survival, the directed verdict for the defendant was proper.
Analysis:
This decision officially adopts the 'loss of a chance' doctrine in New Mexico, which allows recovery for patients whose probability of survival was already below 50% when the medical negligence occurred. The key doctrinal shift is redefining the injury from the ultimate harm (death) to the diminution of the patient's survival probability. This holding aligns New Mexico with the majority rule and prevents the inequitable result of barring recovery for negligently-harmed patients who were already seriously ill. However, the court emphasizes that this does not relax the standard for proximate cause; plaintiffs must still present sufficient evidence, typically expert testimony, to prove that the defendant's breach more likely than not caused the loss of that chance.
