Dumas v. Cooney
235 Cal. App. 3d 1593, 91 Daily Journal DAR 14350, 1 Cal. Rptr. 2d 584 (1991)
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Rule of Law:
In a medical malpractice action, a plaintiff must prove causation to a reasonable medical probability, meaning it is more likely than not that the defendant's negligence caused the injury; recovery is not permitted for the loss of a mere 'possibility' or 'chance' of a better outcome.
Facts:
- In September 1984, Kenneth Dumas was treated by Dr. Cooney, who referred him for a chest X-ray.
- The radiologist's report noted an item of 'unknown significance' in Dumas's lung and recommended a follow-up study in three months.
- Dumas alleged that his doctors, Cooney and Spivack, failed to communicate this recommendation to him.
- Dumas did not undergo another X-ray until his annual physical examination in 1986.
- In 1986, Dr. Spivack diagnosed Dumas with lung cancer, and a tumor was subsequently removed.
- Dumas's expert witness testified that the tumor was likely 'stage 1' in 1984, with a 67% chance of five-year disease-free survival.
- By 1986, the tumor had advanced to 'stage 3A', and Dumas's chance of five-year disease-free survival had dropped to 15-20%.
Procedural Posture:
- Kenneth Dumas sued David Cooney, M.D., and Alfred Spivack, M.D., in a California superior court (trial court) for medical malpractice.
- The trial court, over the defendants' objection, gave a jury instruction allowing damages based on a 'lost chance' theory.
- The jury returned a verdict in favor of the plaintiff, awarding $321,400 in damages.
- The trial court entered judgment on the verdict.
- The defendants, as appellants, appealed the judgment to the California Court of Appeal, Sixth District, with Dumas's estate as the respondent.
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Issue:
Does a jury instruction in a medical malpractice case that allows damages to be based on evidence that the plaintiff would have benefitted from a 'possible cure' or 'possible lengthening of his life' misstate California's requirement that causation be proven to a reasonable medical probability (more likely than not)?
Opinions:
Majority - Premo, J.
Yes. A jury instruction allowing recovery for a 'possible' benefit misstates California law by endorsing the 'lost chance' doctrine, which is contrary to the established standard of causation. California law requires a plaintiff to prove causation to a 'reasonable medical probability,' meaning it must be more likely than not that the physician's negligence was a substantial factor in causing the harm. The 'lost chance' doctrine, which would permit recovery for the loss of a less-than-even chance of a better outcome, fundamentally alters the traditional meaning of causation. This court declines to adopt such a sweeping modification of tort law, viewing it as a public policy matter best left to the Legislature. The instruction given in this case, which allowed the jury to award damages for a 'possible' cure or lengthening of life, was erroneous and prejudicial, as it likely misled the jury into applying a standard lower than the required 'more likely than not' threshold.
Analysis:
This decision solidifies California's rejection of the 'lost chance' doctrine in medical malpractice cases, reinforcing the traditional 'all-or-nothing' approach to causation. The ruling establishes a significant barrier for plaintiffs, particularly in cases involving pre-existing conditions like cancer, where a patient's initial chance of survival may already be below 50%. By requiring plaintiffs to prove that negligence more likely than not caused the ultimate harm, the court prevents recovery for the loss of a substantial but less-than-probable chance of a better outcome. The court's deference to the Legislature on this issue signals a judicial reluctance to enact major public policy changes in tort liability, leaving the door open for a statutory solution.
