Fennell v. Southern Maryland Hospital Center, Inc.
1990 Md. LEXIS 160, 320 Md. 776, 580 A.2d 206 (1990)
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Rule of Law:
Maryland law does not recognize a cause of action for the loss of a chance of survival in a survival action where the defendant's alleged negligence deprived the decedent of a less than 50% chance of survival.
Facts:
- On July 14, 1981, Cora L. Fennell went to the Southern Maryland Hospital Center emergency room with a severe headache.
- Dr. Kring, the emergency room physician, suspected a neurosurgical emergency and, after consulting a neurosurgeon, ordered a CT scan.
- The CT scan, performed around 3:30 a.m., ruled out an intracranial bleed and suggested an inflammatory process showing brain swelling.
- Cora L. Fennell was admitted to the hospital at 4:00 a.m. and transferred to the Intensive Care Unit at 5:00 a.m.
- No treating physician saw Mrs. Fennell between her 4:00 a.m. admission and approximately 7:30 a.m.
- At 7:40 a.m., Mrs. Fennell suffered a cardiac arrest and was determined to be brain dead; an autopsy later revealed she had bacterial meningitis.
- The Fennells' expert testified that the hospital's failure to perform a timely lumbar puncture and treat the brain swelling constituted negligence that deprived Mrs. Fennell of a 40% chance of survival.
Procedural Posture:
- The Fennells filed a medical malpractice claim against Southern Maryland Hospital Center, Inc. before the Health Claims Arbitration Board.
- The Health Claims Arbitration Board granted summary judgment in favor of the Hospital.
- The Fennells filed a complaint in the Circuit Court for Prince George's County (a trial court).
- The Circuit Court also granted summary judgment for the Hospital on both the wrongful death and survival claims.
- The Fennells, as appellants, appealed the summary judgment on the survival claim to the Court of Special Appeals (Maryland's intermediate appellate court).
- The Court of Appeals of Maryland (the state's highest court) granted a writ of certiorari before the case was considered by the Court of Special Appeals.
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Issue:
Does Maryland law permit recovery of damages in a survival action for the loss of a chance of survival when the defendant's negligence deprived the decedent of a less than 50% chance of survival?
Opinions:
Majority - Chasanow, J.
No, Maryland law does not permit recovery for the loss of a chance of survival when the original chance was less than 50%. The court declined to adopt the 'loss of chance' doctrine, either by relaxing traditional causation standards or by recognizing it as a new form of damages. The court reasoned that traditional tort law requires a plaintiff to prove by a preponderance of the evidence (more likely than not) that the defendant's negligence caused the injury. Allowing recovery for the loss of a less-than-50% chance would mean awarding damages based on a mere possibility of causation, which is contrary to established Maryland law. Furthermore, the court expressed significant public policy concerns, stating that recognizing such a claim would expand tort liability, increase medical malpractice litigation and insurance costs, and that such a significant change to the common law is better addressed by the legislature.
Dissenting - Adkins, J.
Yes, the court should recognize a claim for loss of chance damages. The dissent argues that the majority's adherence to the 'all or nothing' rule is unfair, as it arbitrarily denies any recovery to a victim if their chance of survival was 50% or less, while allowing full recovery at 51%. The dissent contends that tort law is about fairness, not mathematical precision, and that juries are capable of evaluating statistical evidence to award proportional damages for the chance that was tortiously lost. Concerns about increased litigation and societal costs are speculative and should not prevent the court from providing a remedy for a clear harm.
Concurring - Eldridge, J.
Concurring in the result, the opinion agrees with the majority's conclusion as it applies specifically to survival actions. However, it suggests that the court should be open to reconsidering its prior holding in Weimer v. Hetrick, which barred loss of chance damages in wrongful death actions. The author believes that if such damages were to be recoverable, a wrongful death action would be the more appropriate vehicle, and the policy balance might be struck differently in that context.
Concurring - McAuliffe, J.
Concurring in the result, the opinion agrees that a strong argument can be made for compensating the loss of a substantial chance of survival. However, it argues that recovery should be based on recognizing the loss of chance as a distinct injury, not on relaxing causation rules. The author concludes that because creating such a remedy would require including damages typically available only in wrongful death actions and involves significant public policy choices, the matter is best left for comprehensive legislative action rather than piecemeal judicial change.
Analysis:
This decision firmly entrenches the traditional 'all-or-nothing' rule for causation in Maryland medical malpractice law, requiring plaintiffs to prove that it was more likely than not (>50% probability) that the defendant's negligence caused the death. By explicitly rejecting the loss of chance doctrine, the court prevented a significant expansion of tort liability for healthcare providers and created a high evidentiary bar for plaintiffs in cases involving patients with poor prognoses. The ruling distinguishes Maryland from a growing number of jurisdictions that had adopted the doctrine, emphasizing judicial restraint and deference to the legislature on matters of significant public policy.
