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Law School Case Brief

Smith v. Dep't of Health & Hosps. - 95-0038 ( La. 06/25/96), 676 So. 2d 543


The lost chance of survival in professional malpractice cases has a value in and of itself that is different from the value of a wrongful death or survival claim. The jury can calculate the lost chance of survival without going through the illusory exercise of setting a value for the wrongful death or survival claims and then mechanically reducing that amount by some consensus of the expert estimates of the percentage chance of survival. The methodology for fixing damages attributable to the loss of a chance of survival should not be so mechanistic as to require the jury merely to fill in the blanks on a verdict sheet with a consensus number for the percentage chance of survival and the total amount of damages, and then have the judge perform the multiplication task.


Plaintiff's husband had gone into the hospital for routine foot surgery. His hospitalization had included a routine chest x-ray, which the staff radiologist reported as showing a mediastinal mass. He was discharged from the hospital without any information about the mass in his chest. When he returned 15 months later, he was diagnosed with lung cancer from which he died 19 months after the initial x-ray. Plaintiff then filed the instant medical malpractice action. At trial, the parties presented evidence by several doctors relating to the percentage chance of survival for certain periods of time after discovery of small cell carcinoma of the lung at various stages of progression of the disease. The trial court ruled that plaintiff had not met her burden of proving that the 15-month delay in treatment resulting from the State's admitted negligence had caused decedent to die or to lose a chance of survival. The court of appeal reversed, concluding that the trial court was plainly wrong in failing to find the loss of a chance of survival. The appellate court stated that every expert testified that the decedent had lost some chance of surviving the disease because of the hospital’s negligence. As to the method of measuring those damages, the appellate court rejected cplaintiffs contention that she was entitled to full damages for the death, noting that plaintiff failed to prove, more probably than not, that the husband would have survived but for the hospital’s malpractice. The plaintiff appealed.


Was a widow entitled to full damages for the loss of her husband’s chance of survival?




The Court rejected the appellate court’s decision regarding damages. According to the Court, allowing recovery for the loss of a chance of survival was a recognition of the loss of a chance of survival as a distinct compensable injury caused by the hospital’s negligence, to be distinguished from the loss of life in wrongful death cases, and there was no variance from the usual burden in proving that distinct loss.

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