Herskovits v. Group Health Cooperative of Puget Sound
Supreme Court of WA - 1983
D negligently failed to diagnose P's cancer on his first visit to the hospital and proximately caused a 14% reduction in his chances of survival.
P had less than a 50% chance of survival at all times.
Trial court granted summary judgment for D.
WA Supreme Court reversed, reinstated P's claim.
Can a patient with less than a 50% chance of survival bring a cause of action against a D when they are negligent and cause the chances of survival to drop?
A patient with less than a 50% chance of survival can bring a cause of action against a D when they are negligent and cause the patient's chances of survival to drop significantly.
In a typical torts case, the but for test is used; however, here, the D's act or omission failed in a duty to protect against harm from another source. Thus, the fact finder must consider not only what did occur but also what might have occurred.
Once a P has demonstrated that D's acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.
It is not required that the P must have had a 51% chance of survival before the negligence.
A reduction from 39 to 25% is sufficient evidence to allow the proximate cause issue to go to the jury.
Damages should be awarded to the injured party based only on damages caused directly by premature death, such as lost earnings and additional medical expenses.