An individual who is injured by a medical provider's failure to perform a particular procedure may recover for any substantial loss of opportunity to avoid physical harm. However, a person may only recover an amount that is equal to the "percent chance lost" times the "value of total harm incurred."
Plaintiff's wife died during childbirth, as a result of an embolism. Plaintiff sued the doctor and the hospital, on the grounds of negligence and plaintiff's experts were prepared to testify that the doctor should have started an IV line before administering anesthesia. Further, if they had done so, the wife's probability of surviving the embolism would have been 37.5 percent greater. Without the IV, the chances of surviving were zero. The trial court granted summary disposition to the hospital and doctor, for no genuine issue of material fact. Plaintiff appeals from this grant of summary judgment.
Can an individual recover for an injury, when the individual's chance of recovery was less than 50%?
In reversing the grant of summary judgment, the Court held that the issue of proximate cause, raised by the plaintiff's expert testimony, should have been submitted to the jury. Further, though the evidence did not establish legal ("but for") causation, it still raised the issue of proximate cause that the jury should have handled. Because the jury was not able to decide on this issue, the matter was remanded.