Kilpatrick v. Bryant
1993 WL 560506, 1993 Tenn. LEXIS 452, 868 S.W.2d 594 (1993)
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Rule of Law:
In a medical malpractice action, a plaintiff cannot recover for the "loss of a chance" of a better medical outcome if the adverse result probably would have occurred even with proper medical care. The plaintiff must prove by a preponderance of the evidence that the defendant's negligence caused an injury that would not otherwise have occurred.
Facts:
- On May 18, 1987, Dr. James W. Bryant examined Sandra Kilpatrick and detected a lump in her right breast.
- Dr. Bryant ordered a mammogram, which was performed on May 21, 1987, and interpreted as showing no malignancy.
- Dr. Bryant informed Mrs. Kilpatrick that the mammogram results were negative and did not suggest the need for any follow-up care beyond routine examinations.
- Approximately four months later, in September 1987, Mrs. Kilpatrick was examined by a different physician who performed a biopsy.
- The biopsy detected cancer in Mrs. Kilpatrick's right breast.
- One month later, Mrs. Kilpatrick underwent a right radical mastectomy for the removal of the cancer.
Procedural Posture:
- Sandra and William Kilpatrick sued Dr. James W. Bryant in a Tennessee trial court for medical malpractice.
- Dr. Bryant filed a motion for summary judgment, arguing the plaintiffs could not prove his alleged negligence caused Mrs. Kilpatrick's injuries.
- The trial court granted Dr. Bryant's motion for summary judgment and dismissed the lawsuit.
- The Kilpatricks, as appellants, appealed the dismissal to the Tennessee Court of Appeals.
- The Court of Appeals affirmed the trial court's decision in favor of Dr. Bryant, the appellee.
- The Kilpatricks, as appellants, were granted permission to appeal to the Supreme Court of Tennessee.
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Issue:
Does Tennessee law recognize a cause of action for 'loss of chance' in a medical malpractice case where a physician's negligence allegedly decreases a patient's chance of recovery, but the patient likely would have suffered the adverse medical condition anyway?
Opinions:
Majority - Drowota, J.
No. Tennessee law does not recognize a cause of action for 'loss of chance' in medical malpractice cases. The court held that the Tennessee Medical Malpractice Act, specifically T.C.A. § 29-26-115(a)(3), codifies the traditional 'but-for' test for causation, which requires a plaintiff to prove they suffered injuries 'which would not otherwise have occurred.' This means the plaintiff must show that it is more likely than not (greater than 50% probability) that the defendant's negligence caused the harm. The 'loss of chance' doctrine is fundamentally at odds with this standard because it would allow recovery even when a patient had a less than even chance of a better outcome, meaning the harm probably would have occurred anyway. The court explicitly declined to relax this traditional causation requirement. However, the court did allow the plaintiffs to pursue damages for specific harms directly attributable to the four-month delay, such as additional pain, suffering, and medical treatment, provided they can prove these specific injuries would not have occurred but for the defendant's negligence.
Concurring - Reid, C.J.
No. The concurring opinion agrees that Tennessee law does not recognize a cause of action for 'loss of chance.' The opinion emphasizes that recognizing 'loss of chance' would redefine the compensable injury from a traditional bodily injury to the loss of a 'chance' or 'risk' itself. This would be a revolutionary change to tort law with potentially far-reaching consequences beyond medical malpractice. Therefore, the concurrence agrees with the majority to reject the 'loss of chance' claim while allowing the plaintiffs to proceed with their claims for traditional damages like pain and suffering caused by the delay.
Concurring-in-part-and-dissenting-in-part - Daughtrey, J.
Yes. The dissent argues that the court should recognize a cause of action for 'loss of chance' and that prior Tennessee case law, specifically Truan v. Smith, implicitly supported recovery for an increased risk of harm. The dissent criticizes the majority's 'all-or-nothing' approach as unjust, as it allows negligent healthcare providers to escape liability for harming patients who already had a poor prognosis (less than 51% chance of survival). The dissent advocates for redefining the injury as the 'lost opportunity' itself, which would allow a plaintiff to satisfy the traditional 'more likely than not' causation standard by proving the physician's negligence probably caused the loss of that chance. This approach, adopted by a majority of jurisdictions, is more consistent with modern tort principles like comparative fault.
Concurring-in-part-and-dissenting-in-part - Anderson, J.
Yes. The dissent agrees with Justice Daughtrey's reasoning that a cause of action for 'loss of chance' should be recognized. However, this opinion would limit recovery to cases involving a 'substantial' loss of chance, defined as at least a 20 percent reduction. Furthermore, it would confine the application of this doctrine strictly to medical malpractice actions, rather than allowing it to be applied to other areas of tort law.
Analysis:
This decision solidifies the traditional 'all-or-nothing' approach to causation in Tennessee medical malpractice law, placing the state in the minority of jurisdictions that reject the 'loss of chance' doctrine. By strictly adhering to the 'but-for' causation standard, the court makes it extremely difficult for plaintiffs with a pre-existing condition and a poor prognosis (less than a 51% chance of a better outcome) to recover for the ultimate harm, even if a physician's negligence demonstrably worsened their odds. The ruling maintains a high bar for causation but carves out a limited path for recovery by allowing claims for ancillary damages, such as additional pain and medical expenses, directly caused by a negligent delay. The sharply divided court reflects the national debate over balancing fairness to injured patients against traditional tort principles of causation.
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