In the case of Mohr v. Grantham, decided on October 13, 2011, the state Supreme Court reversed a trial court’s dismissal of a medical professional liability action and allowed a case to go forward despite the lack of evidence that the alleged negligence more probably than not caused the patient’s adverse outcome. The Court decided, on a 6-3 vote, that, under some circumstances, a patient can recover damages for medical negligence if the patient can prove the negligence caused the loss of a chance of a better outcome.
This will perhaps be most significant in cases involving an alleged negligent delay in diagnosis or treatment. In many such cases, the delay did not change the outcome of the disease or injury process, and no compensable injury occurred. But now courts may allow recovery of damages for a delay that reduced the chance of a better outcome even if a preexisting disease or injury probably made the outcome inevitable.
There are many unanswered questions about the implementation of this decision. What kind of expert testimony will plaintiffs need to prove proximate cause of the loss of a chance of a better outcome? What kind of guidance will juries be provided to help them measure the value of a lost chance of a better outcome? Is it sufficient proof if experts present this kind of causation testimony even if they cannot say how much better the outcome would have been?
How will physicians decide what course of treatment or what course of diagnostic testing should be used, knowing it is possible some expert will believe that another approach was required because it would, in that expert’s opinion, have increased the chance of a better outcome?
This decision places impossible burdens on physicians. It punishes physicians for negligence that cannot be shown to have caused the patient’s outcome. No standard like this has ever been imposed on other professionals, such as architects, engineers, accountants, and attorneys.
Chief Justice Madsen, in her dissenting opinion, suggested the legislature should be asked to look at the public policy considerations that might warrant revisiting the majority decision.
We are drafting a legislative fix and developing a strategy with the Washington State Medical Association for seeking bipartisan support. To learn more or get involved, please contact Anne Bryant, Senior Director of Government Relations, at firstname.lastname@example.org.