Document Sample
ProofOfCausation_Herskovits_v_GroupHeathCooperativeOfPugetSound Powered By Docstoc

page 264

Herskovits v. Group Heath Cooperative of Puget Sound, Supreme Court of WA, 1983 Does a patient with < 50% chance of survival have a cause of action? Issue Reasoning
Court relied on Hamil: Hamil had > 50% chance of surviving a heart attack. P’s Expert witness testified that had proper care been given there was 75% probability of surviving. D witness said: patient would have died anyway, D’s act or omission failed in a duty to protect against harm from another source. Damage or death would no have occurred “but for” the negligent conduct of the D. Jury, has to consider whay did occur but might have occurred had proper care been given. Even though the degree of certainty falls below what the law requires before a preson ios found liable, the case must nevertheless go to the jury so that an actor is not completely insulated from liability because of the uncertainty.

If P can show that D’s acts or omission,


increased the risk of harm to another

Dr. William failed to diagnose P’s husband’s cancer on the first visit thus reducingthe survivability rate by 14%. P’s husband had a < 50% chance anyway. (P and D agreed to this).

jury will determine whether the increased risk was a substantial factor in bringing about the resultant harm. Jury allowed to speculate on what could’ve happened.

39-25% change of survival is sufficient evidence to allow proximate cause to go to the jury.

Held Procedure P argues D argues

Reversed and re-instated cause of action. P sued for professional negligence. Trial court granted summary judgment to D. P appeals P must show that P probably had a > 51% chance of survivial had the hospital not been negligent.


page 264

PROCEDURAL POSTURE: Appeal from decision of the Superior Court for King County (Washington) granting summary judgment in negligence action to defendant health cooperative based on plaintiff's failure to show that decedent had at least a 51 percent chance of survival absent defendant's negligence. OVERVIEW: Plaintiff's decedent received medical treatment through defendant for respiratory symptoms. More than a year later, another doctor diagnosed lung cancer, and plaintiff's decedent died 20 months later. Plaintiff submitted medical evidence that late diagnosis may have reduced the decedent's chance of survival from 39 percent to 25 percent. The court reversed summary judgment for defendant and reinstated plaintiff's cause of action, holding that plaintiff did not need to show that decedent's probability of survival was 51 percent, and plaintiff's evidence of a reduced chance of survival was sufficient for jury determination of proximate cause. OUTCOME: The court reversed summary judgment and reinstated plaintiff's negligence action because evidence regarding plaintiff's decedent's reduced chance of survival following defendant's failure to timely diagnose cancer was sufficient to submit proximate cause issue to jury.
Torts > Negligence > Negligence Generally Torts > Negligence > Duty > Duty Generally

A person who negligently renders aid and consequently increases the risk of harm to those he is trying to assist is liable for any physical damages he causes. More Like This Headnote

Torts > Causation > Proximate Cause Torts > Negligence > Proof of Negligence

The mere occurrence of an injury does not prove negligence, but the defendant's conduct must be a proximate cause of the plaintiff's injury. More Like This Headnote

Torts > Causation > Proximate Cause

Medical testimony of a reduction of chance of survival is sufficient evidence to allow the proximate cause issue to go to the jury. More Like This Headnote

Shared By:
Tags: Torts, Case, briefs