Mohr v. Grantham
172 Wash. 2d 844, 262 P.3d 490 (2011)
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Rule of Law:
In a medical malpractice action, a plaintiff can recover for the loss of a chance of a better outcome when a healthcare provider's negligence diminishes that chance, even if the ultimate harm is a serious injury short of death. The cognizable injury is the lost chance itself, with damages calculated proportionally to the percentage of the chance that was lost.
Facts:
- On August 31, 2004, Linda Mohr was taken to the Kadlec Medical Center (KMC) emergency room after a car accident. Initial tests for head trauma, overseen by Dr. Dale Grantham, were normal.
- Despite subsequently showing neurological symptoms like wobbliness and severe pain, Dr. Grantham discharged Mohr without performing a promised follow-up neurological assessment.
- The next morning, September 1, 2004, Mohr was returned to KMC and was diagnosed with a stroke by Dr. Brian Dawson.
- Following the diagnosis, there were significant delays in performing a CT angiogram to identify the cause of the stroke.
- Dr. Brooks Watson II, who took over Mohr's care, was not promptly informed of the CT angiogram results showing a dissected carotid artery.
- Despite the diagnosis and the known cause, doctors did not administer anticoagulant therapy, and aspirin was only given hours later, just before Mohr was transferred to another hospital.
- As a result of the stroke, Mohr suffered permanent brain damage, with a quarter to a third of her brain tissue destroyed.
Procedural Posture:
- Linda Mohr and her husband sued Drs. Grantham, Dawson, and Watson, along with Kadlec Medical Center, in Benton County Superior Court for medical malpractice.
- The defendants moved for summary judgment, arguing the plaintiffs could not prove 'but for' causation.
- The Superior Court (trial court) granted summary judgment for the defendants.
- The Mohrs appealed the trial court's decision to the Court of Appeals.
- The Court of Appeals certified the case directly to the Supreme Court of Washington for review.
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Issue:
In the medical malpractice context, is there a cause of action for a lost chance of a better outcome, even when the ultimate harm is a serious injury short of death?
Opinions:
Majority - Owens, J.
Yes, there is a cause of action for a lost chance of a better outcome in medical malpractice cases where the ultimate harm is a serious injury short of death. The court extends the doctrine from Herskovits v. Group Health, which applied to wrongful death, finding no persuasive rationale to distinguish between a lost chance of survival and a lost chance of avoiding permanent disability. The court formally adopts the Herskovits plurality reasoning, which defines the injury not as the ultimate physical harm, but as the lost chance itself. This approach avoids the traditional 'but for' causation problem, as the plaintiff must prove the defendant's breach of duty proximately caused the loss of chance. The court also holds that damages should be proportional, meaning a plaintiff can recover the percentage of damages equal to the percentage of the chance lost (e.g., 40% of traditional tort recovery for a 40% lost chance).
Dissenting - Madsen, C.J.
No, the court should not extend a cause of action for a lost chance of a better outcome. This doctrine improperly discards the fundamental tort principle that a plaintiff must prove the defendant's negligence, more probably than not, caused the actual physical injury. Redefining the 'injury' as the lost chance is a 'semantic pretense' that allows liability based on mere possibility, which is contrary to black letter law and the medical malpractice statute, RCW 7.70.040. The dissent argues that this change imposes unfair liability uniquely on the healthcare profession and involves significant public policy considerations that should be addressed by the legislature, not the judiciary.
Dissenting - J.M. Johnson, J.
No, the court should not extend the lost chance doctrine because it creates a speculative cause of action not authorized by Washington's medical liability statute, RCW 7.70.040. The statute plainly requires proof that a healthcare provider's failure was a 'proximate cause of the injury complained of.' The injury complained of here is the dissected artery and loss of brain tissue, which the plaintiffs have not shown was caused in fact by the defendants. By creating a cause of action for a 'lost chance,' the majority's decision is contrary to the express legislative mandate and places an impossible burden on medical professionals.
Analysis:
This decision significantly expands medical malpractice liability in Washington by extending the 'lost chance' doctrine beyond wrongful death to cases of serious personal injury. By formally adopting the theory that the 'injury' is the lost opportunity itself, the court lowers the causation barrier for plaintiffs who previously might have been barred from recovery because they could not prove that, 'but for' the doctor's negligence, they would have had a better than 50% chance of a better outcome. This ruling creates a new avenue for recovery in cases involving diagnostic or treatment delays, and future litigation will likely focus on defining the scope of 'serious injury' and the methods for calculating proportional damages based on expert testimony about lost percentages of chance.
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