While a plaintiff must show some probability that a treatment not given would have been successful, that probability need not be greater than fifty percent.
Plaintiff’s decedent died from an amniotic fluid embolism following the otherwise normal birth of the decedent’s child. The Plaintiff alleges malpractice on the part of the defendant doctor on the basis of the failure to have an I.V. in place during the use of a spinal-block anesthesia. Experts testified that if the I.V. was in place, there would have been a 37.5 percent probability that the decedent’s life could have been saved. Additionally, the standard of care requires the use of an I.V. in conjunction with the type of anesthetic administered to the decedent and because no such I.V. was in place, the decedent had zero percent chance of survival. The trial court granted summary judgment in favor of defendants.
Did the trial court err in granting summary judgment?
The Court reversed and stated the trial court erred in granting summary disposition, and that the issue of proximate cause should have been submitted to the jury. The references to the probability of recovery are there to address the requirement that there must be some reason for the physician to have performed the procedure in the first place. The plaintiff is not entitled to recovery just because the physician failed to perform a procedure that could have had a small chance of improving the patient’s condition, but the jury must determine whether, under the standard of care, the physician should have performed the omitted procedure of treatment. If the omission does not breach the standard of care, the plaintiff cannot recover.