Roberts v. Ohio Permanente Med. Grp. - 1996-Ohio-375, 76 Ohio St. 3d 483, 668 N.E.2d 480

Rule:

In medical malpractice cases, the general rule is that the plaintiff must prove causation through medical expert testimony in terms of probability to establish that the injury was, more likely than not, caused by the defendant's negligence. However, the "loss of chance" theory, which compensates an injured plaintiff for his or her diminished chance of recovery or survival, provides an exception to the traditionally strict standard of proving causation in a medical malpractice action. Instead of being required to prove with reasonable probability that defendant's tortious conduct proximately caused injury or death, the plaintiff, who was already suffering from some disease or disorder at the time the malpractice occurred, can recover for his or her "lost chance" even though the possibility of survival or recovery is less than probable.

Facts:

Plaintiff executor, Joan Roberts, brought a wrongful death suit against defendants-appellees, Ohio Permanente Medical Group, Inc., Dipti Shah, M.D., Akron City Hospital and others, alleging a failure to timely diagnose and treat a decedent's lung cancer. Plaintiff alleged that the medical group was negligent in causing a 17-month delay in the diagnosis and treatment of lung cancer. An amended complaint added claims for loss of support, services, society, and prospective inheritance. Defendants filed motions for summary judgment and the parties stipulated that, based upon plaintiff's expert witness, plaintiff's decedent would have had a twenty-eight percent chance of survival had proper and timely care been rendered. Based upon this figure, defendants argued that summary judgment was warranted since plaintiff failed to establish that defendants' negligence had, in probability, proximately caused decedent's death. Plaintiff, however, relying in part on the loss-of-chance theory of recovery, argued that she had established a triable issue of fact by presenting evidence that defendants' negligence decreased decedent's chance of survival from twenty-eight percent to zero. The trial court rejected plaintiff's argument and granted defendants' summary judgment motions on authority of Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St. 2d 242, 56 Ohio Op. 2d 146, 272 N.E.2d 97. The court of appeals affirmed.

Issue:

Where the decedent had a less than 50 percent chance of survival, was a claim for loss of chance in a wrongful death action a valid claim for recovery? 

Answer:

Yes.

Conclusion:

The court reversed the judgment of the court of appeals in favor of the medical group and remanded the matter to the trial court. The court overruled previous case law that failed to recognize the loss-of-chance recovery theory in medical malpractice cases. The court found that the medical group should not have been allowed to come in after the fact and allege that the result was inevitable inasmuch as the medical group put the patient's chance beyond the possibility of realization. In conclusion, the court found that a claim for loss of chance in a wrongful death action where the decedent had a less than 50 percent chance of survival was now a valid claim for recovery.