New Mexico's Supreme Court adopted the doctrine of “lost chance” for medical malpractice cases.
Dee and Mildred Alberts (Plaintiffs) sued defendant Dr. Russell D. Schultz and Dr. Gopal Reddy (Defendants) for the amputation of Plaintiff husband's right leg. Plaintiffs' expert testified that, because the medical records were incomplete, he could not state to a reasonable degree of medical probability that immediate use of certain tests or bypass surgery would have increased the chance of saving Plaintiff husband's leg. The trial court granted Defendants' partial summary judgment due to Plaintiffs' failure to establish that Defendants' conduct proximately caused plaintiff husband's injury, but denied Defendants' summary judgment on the issue of pain and suffering. The trial court found that there was an issue whether Defendants' allegedly negligent conduct reduced the chance of avoiding plaintiff husband's injury, and it certified that issue for interlocutory appeal.
Does the doctrine of “lost chance” apply to the medical malpractice case at issue?
“A claim for loss of chance is predicated upon the negligent denial by a healthcare provider of the most effective therapy for a patient's presenting medical problem. The negligence may be found in such misconduct as an incorrect diagnosis, the application of inappropriate treatments, or the failure to timely provide the proper treatment. . . .If the Alberts had brought a claim under an ordinary medical malpractice negligence theory, the injury alleged would be the loss of Dee's leg below the knee. They cannot sustain such a claim, however, because his preexisting condition-peripheral vascular disease-precludes proof to a reasonable degree of medical probability that the doctors' negligence proximately caused the loss of the leg below the knee. In contrast, Dee can submit evidence that he had a chance-even if it was a small chance-of being cured of the presenting problem of rest pain and possible impending gangrene. He can be compensated if he can demonstrate, to a reasonable degree of medical probability, a causal link between the doctor's negligence and the loss of that chance. . . .We do not believe this theory of recovery-to which we apply the terms "loss of chance" or "lost chance"-should be deemed, as the trial court implies, a new "cause of action." We conclude, however, that it is appropriate for New Mexico to recognize this claim. Nevertheless, after applying the loss-of-chance theory to the facts of this case, we conclude that the Alberts failed to prove causation.”