Herskovits v. Grp. Health Coop.

99 Wash. 2d 609, 664 P.2d 474 (1983)



Once a plaintiff has demonstrated that defendant's acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the fact finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm. The necessary proximate cause will be established if the jury finds such cause. It is not necessary for a plaintiff to introduce evidence to establish that the negligence resulted in the injury or death, but simply that the negligence increased the risk of injury or death. The step from the increased risk to causation is one for the jury to make.


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 filed a negligence action against the health cooperative. Plaintiff submitted medical evidence that late diagnosis may have reduced the decedent's chance of survival from 39% to 25%. The Plaintiff argues that a medical declaration of a decrease of the survival rate from 39% to 25% is sufficient to enable the issue of proximate cause to go to the jury. Defendant argues, however, that there must be a demonstration that there was no less than a 51% survival rate. The trial court issued a summary judgment in favor of the defendant.


Did plaintiff need to show that decedent had at least a 51% chance of survival absent defendant's negligence?




The court held that plaintiff need not show that decedent's probability of survival was 51 percent, as the evidence of a lesser chance of survival was, in itself, enough to determine the existence of proximate cause. Courts in different jurisdictions enabled the issue of proximate cause to go to the jury in this rule. Other jurisdictions rejected this approach, for the most part holding that except if the Plaintiff can demonstrate that it was almost certainly that the damage was caused by Defendant's negligence, a showing of a lesser chance of survival is not sufficient to take the proximate cause issue to the jury. For this situation, the court holds that medicinal showing of a decrease of the survival rate from 39% to 25% is enough to have the issue of proximate cause to go to the jury.

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