On June 3, 1986, the United States Court of Appeals for the Tenth Circuit certified the following two questions of law to this Court pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 1981 § 1602:
A review of the decisional law which sets forth the traditional causation standard to be applied in ordinary negligence actions in Oklahoma, as well as decisions from other jurisdictions which reevaluate the use of that standard in reference to a medical malpractice claim where a defendant has negligently breached an undertaking to prevent a certain harm, and adopt the loss of chance doctrine in those limited situations, persuade this Court to answer both questions in the affirmative.
This is an action for the wrongful death of Reverend Allan David McKellips (decedent) brought by his widow, Gretta M. McKellips, and his adult surviving children; Nelrose Margaret Palenske, David McKellips, John McKellips and Paul Mark McKellips, (collectively plaintiffs/appellants). The action is brought against Saint Francis Hospital, Inc., a general hospital operated in the City of Tulsa, Oklahoma, and providing emergency room services to the public;
On July 12, 1981, at 2:30 p.m., decedent was brought to the Saint Francis Hospital emergency room. The decedent was sixty-one years of age and moderately obese. He had a family history of heart disease although decedent himself did not have a prior history of heart disease. Decedent complained of pain over his breastbone radiating to both sides of his chest. After examination and testing, Dr. Caldwell diagnosed decedent's condition as gastritis and released him at approximately 4:15 p.m. Thereafter decedent suffered cardiac arrest and was returned to the hospital by helicopter. At 9:30 p.m. decedent was pronounced dead.
In 1983, suit was filed in the United States District Court for the Northern District of Oklahoma. At trial, appellants' expert witness, a board certified emergency physician, testified by deposition that appellees were negligent in diagnosing decedent as suffering from gastritis instead of a heart attack, and in releasing him rather than keeping him under observation for a reasonable period of time at the hospital. He further testified in his opinion based upon the hospital records decedent's "heart attack was probably well under way at the time of his visit to the emergency department the first time" and admitting decedent to the hospital for observation at that time would not have prevented the heart attack. However, he testified with regard to decedent's chances for survival or prevention:
At the conclusion of appellants' evidence, appellees moved for a directed verdict on the ground that causation had not been established. The district court granted the motion for failure of appellants to prove the essential elements of their claim. The transcript reflects the district court assumed without deciding that Oklahoma would apply the loss of a chance doctrine, and determined appellants' evidence was insufficient with or without application of the doctrine.
The first certified question presented by this case is whether Oklahoma adheres to the loss of a chance doctrine in a medical malpractice action.
The three elements essential to a prima facie case of negligence are: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly exercise or perform that duty and (3) the plaintiff's injuries are proximately caused by the defendant's failure to exercise his duty of care.
Proximate cause consists of two elements: cause in fact and legal causation.
The sufficiency of the evidence to show cause in fact presents a question of law for the court.
In Oklahoma, the general principles of proof of causation in a medical malpractice action are the same as an ordinary negligence case. The reasonable probability standard for sufficiency of proof of causation is applied although it has been stated in varying language, such as "[t]he circumstances proved must lead to the conclusion with reasonable certainty and probability"
An evolving trend has developed to relax the standard for sufficiency of proof of causation ordinarily required of a plaintiff to provide a basis upon which the jury may consider causation in the "lost chance of survival" cases. In the typical loss of a chance case, a plaintiff already has a condition or is subject to risk from a hazard, unlike a healthy plaintiff in most personal injury cases. A plaintiff claims the negligence has increased the risk of harm by hastening or aggravating the effect of the pre-existing condition or risk. Additionally, the typical case often involves a situation in which the duty breached by a tortfeasor is imposed to prevent the harm which ultimately becomes the basis for the damages sought. Often times these cases are problematic
Various theories have been followed by the courts which have addressed the loss of chance concept in medical negligence cases. Several courts have recognized the loss of a significant chance as a new cause of action viewing the injury as the loss of a statistical chance of cure or survival.
Others have relaxed the degree of certainty and have adopted the substantial factor test instead of the reasonable probability standard.
Some jurisdictions have seemingly adopted a "substantial possibility" standard of sufficiency of the evidence.
The above language is an oft-repeated quote found in cases adopting the loss of a chance doctrine under the possibility standard of proof approach.
Another approach followed by other jurisdictions is the Restatement (Second) of Torts § 323 (1965) theory which recognizes a breach of the duty imposed by that section carries with it an implication of causation
In Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the Pennsylvania Supreme Court found it unnecessary to require medical testimony concerning what might have happened with proper diagnosis and treatment when the plaintiff could establish, to a reasonable degree of medical certainty, an increased risk of sustaining the harm that ultimately occurred. The court held a prima facie case of causation is established with proof of a Section 323 violation:
In carving out an exception based on § 323 to the traditional test of sufficiency of the evidence, the Hamil court recognized that uncertain evidence may be the only evidence available in this type of medical malpractice case. The court explained:
Although in Hamil the patient had a greater than fifty percent chance of recovery with proper treatment, other cases have adopted the reasoning where the survival possibility was less than fifty percent.
In Herskovits, 99 Wn.2d 609, 664 P.2d 474, 475 (1983), that court considered the issue "whether a patient, with less than a 50 percent chance of survival, has a cause of action against the hospital and its employees if they are negligent in diagnosing a lung cancer which reduces his chances of survival by 14 percent." In adopting the value of a lost chance theory under the Restatement § 323 approach it stated:
We acknowledge, however, that a minority of jurisdictions have rejected the lost chance of survival concept and retained the requirement that the medical malpractice plaintiff must show that the injury more likely than not resulted from the defendant's negligence.
The minority position places "a premium on each party's search for the willing witness." Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605, 615 (Ariz. 1984). Under the present standard of probability applied in all negligence cases in Oklahoma, an expert must speak the "magic words", i.e., that the defendant's conduct more probably than not caused the injury, to ensure that a verdict will not be directed for the defendant. In essence, a plaintiff must prove that the patient had a better-than-even chance of recovery in the absence of the physician's negligence. Such an approach when applied in situations where the duty breached is one imposed to prevent the type of harm which a patient ultimately sustains, actually prevents recovery for the effects of conduct that may cause statistically irrefutable losses. By so doing, this view tends to subvert the deterrence function of tort law. In Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149, 160 (1984), the Supreme Court of Kansas criticized the minority position stating:
The majority of jurisdictions that have considered the lost chance of survival doctrine in medical malpractice action cases have adopted it under one of the approaches discussed above. After a considered reading of those cases, we believe the Restatement (Second) of Torts § 323 approach under the majority position to be the preferable and most rational theory. We think in those situations where a health care provider deprives a patient of a significant chance for recovery by negligently failing to provide medical treatment, the health care professional should not be allowed to come in after the fact and allege that the result was inevitable inasmuch as that person put the patient's chance beyond the possibility of realization. Health care providers should not be given the benefit of the uncertainty created by their own negligent conduct. To hold otherwise would in effect allow care providers to evade liability for their negligent actions or inactions in situations in which patients would not necessarily have survived or recovered, but still would have a significant chance of survival or recovery.
Today's pronouncement adopts the loss of a chance doctrine in Oklahoma in a limited type of medical malpractice case where the duty breached was one imposed to prevent the type of harm which a patient ultimately sustains and because of the inherent nature of such a case a plaintiff is unable to produce evidence of causation sufficient to meet the traditional rule of
Furthermore, we emphasize the new standard of sufficiency of proof adopted by our pronouncement lowers a plaintiff's burden of production to enable him/her to more easily establish a jury question on the issue of causation on a showing of substantial decrease in the chance of survival, rather than a judge directing a verdict or dismissing for failure to make a case for causation. In effect, the lowered standard merely reallocates the power to decide the causation issue, giving the jury a greater role in the decision making process. Once the case reaches the jury, however, the plaintiff still has the burden of persuading the jury by a preponderance of the evidence.
With regard to the second certified question concerning whether expert testimony must be expressed in terms of percentage probabilities under the loss of a chance approach adopted herein to allow the causation issue to go to the jury, we hold percentage probability testimony is not required. In the instant case testimony that "unquestionably [the deceased's] chances would have been significantly improved" is sufficient to take the case to the jury even in the absence of testimony which quantifies the increased chance of survival. We find it unnecessary to require a precise percentage increment of chance of recovery or survival to create a jury question on causation.
However, statistical evidence combined with evidence linking the probabilities to the patient in the case should be considered by the jury in apportioning damages. We believe it is better to limit probabilistic proof to the damage issue.
It is necessary in answering the certified questions posed for us to address apportionment of damages. We note that in medical malpractice cases where application of the loss of chance doctrine is appropriate, damages must be limited to only those proximately caused from a defendant's breach of duty. Otherwise, the traditional principles of causation would be distorted.
The above discussion of damages does not however offer a clear method as to how the damage award should be adjusted. We do not believe a court should rely solely on a jury's common sense to discount the damage award to reflect the uncertainty of causation. One commentator has suggested a meaningful method of valuing damages in the loss of chance cases which we find instructive. J. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981).
The amount of damages recoverable is equal to the percent of chance lost multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.
To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, (40% - 25%) 15% represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% X $500,000 or $75,000.
We believe this method of valuation constitutes the proper view for determining damages in a medical malpractice action where the loss of chance doctrine is applied.
Accordingly, we find if defendants in the present case are found liable the award of damages must be reduced to reflect the probability that defendants caused the death, and recovery is permitted only for the percent of chance lost times the total amount of damages which are ordinarily allowed. This approach provides a fair method of apportioning the damages to account for the decedent's pre-existing condition. An award of all damages for the underlying injury, i.e., death, is precluded.
In summary, we hold in medical malpractice cases involving the loss of a less than even chance of recovery or survival where the plaintiff shows that the defendant's conduct caused a substantial reduction of the patient's chance of recovery or survival, irrespective of statistical evidence, the question of proximate cause is for the jury. We further hold if a jury determines the defendant's negligence is the proximate cause of the patient's injury, the defendant is liable for only those damages proximately caused by his negligence which aggravated a pre-existing condition. Consequently, a total recovery for all damages attributable to death are not allowed and damages should be limited in accordance with the prescribed method of valuation.
DOOLIN, C.J., and LAVENDER, OPALA, ALMA WILSON and KAUGER, JJ., concur.
SUMMERS, J., concurs in result.
HARGRAVE, V.C.J., and SIMMS, J., dissent.
Accord Mays v. United States, 608 F.Supp. 1476 (D.C.Colo. 1985); Herskovits v. Group Health Co-operation of Puget Sound, 664 P.2d at 486 (Pearson, J. concurring) (J. Pearson in advocating use of King's discount method failed however to illustrate application of the method to the facts of Herskovits). See also Prosser and Keeton, supra note 2, at 272; Case Comment, Recovery for "Loss of Chance" in a Wrongful Death Action, 59 Wash.L.Rev. 981, 989 (1984).