Herskovits v. Group Health Coop.

99 Wn.2d 609

 

RULE:

Medical testimony of a reduction of chance of survival is sufficient evidence to allow the proximate cause issue to go to the jury.

FACTS:

Plaintiff's decedent received medical treatment through defendant for respiratory symptoms. More than a year later, another doctor diagnosed lung cancer, and plaintiff's decedent died 20 months later. Plaintiff submitted medical evidence that late diagnosis may have reduced the decedent's chance of survival from 39 percent to 25 percent. Plaintiff appealed the decision of the Superior Court for King County (Washington) granting summary judgment in the negligence action to defendant health cooperative based on plaintiff's failure to show that decedent had at least a 51 percent chance of survival absent defendant's negligence.

ISSUE:

Can an estate maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy?

ANSWER:

Yes.

CONCLUSION:

The court reversed summary judgment for defendant and reinstated plaintiff's cause of action, holding that plaintiff did not need to show that decedent's probability of survival was 51 percent, and plaintiff's evidence of a reduced chance of survival was sufficient for jury determination of proximate cause.

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