In Weimer v. Hetrick, 309 Md. 536, 525 A.2d 643 (1987), we held that the "loss of a substantial chance of survival" doctrine did not apply to a wrongful death action under Md.Code (1984 Repl.Vol., 1987 Cum.Supp.) Cts. & Jud.Proc. Art. § 3-904. We explained that neither Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972), nor Hicks v. United States, 368 F.2d 626 (4th Cir.1966), "created ... a new tort ... [or] an additional basis for determination of damages in an existing tort" on the basis of that doctrine. Weimer, 309 Md. at 553, 525 A.2d at 652. We left for "another day" the question of whether Judge Sobeloff's language in Hicks (368 F.2d at 632) "will prove to be an augury of a burgeoning new tort or introduce a new factor for consideration of damages in tort cases producing injury or death...." Id.
That day has not yet come. The case now before us, tried long before our Weimer, went to the jury on instructions that included one based on the "loss of a chance" doctrine. But because the evidence was insufficient to support that instruction, even assuming the doctrine exists in Maryland, we again decline to decide whether Maryland recognizes the doctrine. We explain.
On 18 February 1978 respondent Stanley Hartman fell and fractured his right hip. Petitioner Dr. Neill Cooper operated on the hip in an effort to repair the damage. The surgery appeared to be successful; Hartman was discharged from the hospital on 16 March, still under the care of Dr. Cooper.
A short time after his discharge, Hartman began showing symptoms of infection in his right hip. On 28 March 1978, during an outpatient consultation with Dr. Cooper, Hartman complained of persistent pain and swelling in his right leg. Dr. Cooper, apparently suspecting infection, prescribed an antibiotic.
The antibiotic had little or no effect on Hartman's pain and swelling, and his condition continued to deteriorate. On 26 April 1978 Hartman again consulted Dr. Cooper, this time complaining of throbbing pain in his right thigh and recurrent episodes of fever. Despite these symptoms Dr. Cooper did not take any serious steps to determine the cause of the swelling until 26 May 1978 when he administered a blood test. The test revealed a slightly elevated white blood count and an increased sedimentation rate, two indicators of infection. Despite these warning signals the doctor took no further action to diagnose or treat the infection until 27 June 1978 when he aspirated the wound and obtained bacterial cultures for testing. Tests of the cultures, however, showed no sign of bacterial infection. Over the next few months, Hartman's symptoms continued but Dr. Cooper failed to abate the infection.
Finally in November 1978, Hartman was admitted to Johns Hopkins Hospital where he was diagnosed as suffering from osteomyelitis (an infection of the bone) in his right leg. During the course of treatment, Hartman underwent five successive surgeries involving removal of bone from his right leg. The end result was a two-inch shortening of the leg.
Hartman and his wife (the Hartmans) filed a medical malpractice claim against Dr. Cooper and other health care providers (hereinafter collectively referred to as Dr. Cooper). Dr. Cooper was victorious in the arbitration proceeding, as he was in a subsequent trial in the Circuit Court for Anne Arundel County. The judgment in his favor, however, was reversed. Hartman v. Cooper, 59 Md.App. 154, 474 A.2d 959 (1984). At a new trial the Hartmans obtained a $210,000 judgment against Dr. Cooper. The Court of Special Appeals affirmed in Cooper v. Hartman, No. 1615, September Term, 1985 (Md. App., filed 6 October 1986) (per curiam). We granted certiorari.
We did so because at the second trial the Hartmans asserted that Dr. Cooper's post-surgery negligence — that is negligence in treating the infection — had caused Hartman to lose a substantial chance of attaining a better recovery than in fact occurred. On the basis of that theory and over Dr. Cooper's objections,
And with regard to causation Judge Goudy gave the following charge:
The latter instruction, in effect, required the jury to apply the doctrine of "loss of substantial chance of survival," or more properly, on the facts of this case, "loss of a substantial chance of recovery." The instruction was based upon Judge Sobeloff's language in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966), which we quoted in Thomas v. Corso, 265 Md. 84, 101-102, 288 A.2d 379, 389-390 (1972). Apparently misreading Thomas, the trial court erroneously concluded that we had adopted the loss of substantial chance doctrine in Maryland.
The doctrine of "loss of substantial chance of survival," as it is often called, has received a great deal of attention recently from commentators.
As a direct consequence of the results occasioned by the traditional approach, some courts have adopted rules designed to alleviate what they view as inequity. The various courts that have adopted these rules, however, have taken different approaches. Some have simply relaxed the standards regarding causation and allowed full compensation for an injury or death where the plaintiff demonstrated less than a 50% chance of recovery.
Professor King in his recent law review article provides a succinct discussion of the damage approach:
King, supra, at 1382. Thus, under Professor King's approach, an injured patient can only recover damages for the lost chance.
Respondents argue that the "loss of substantial chance doctrine" exists in Maryland and should be applied here, either as a new cause of action (the causation approach) or, alternatively, as a method of determining damages for a traditional tort (the damage approach). As we have already observed, we need not and do not decide whether Maryland recognizes the doctrine in any form. That is so because even if we assume, arguendo, the existence of the doctrine, the evidence in this case does not support its application under either approach.
The sufficiency of evidence necessary to establish the element of causation under the causation approach is best illustrated with reference to Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984). In Thompson the court said that
Thompson, 141 Ariz. at 606, 688 P.2d at 614. The Thompson court acknowledged that it, in effect, "permit[ted] the case to go to the jury on the issue of causation with less definite evidence of probability than the ordinary tort case." Id. at 607, 688 P.2d at 615. But the court reiterated that the jury was to be "instructed that they must find for the defendant unless they find a probability that the defendant's negligence was a cause of plaintiff's injury." Id. at 607-608, 688 P.2d at 615-616 [emphasis in original].
At trial Hartman presented testimony of two expert witnesses, Dr. Caplan and Dr. Weiland. Both testified that Dr. Cooper departed from the standard of care by failing to diagnose and treat the infection more promptly. As to causation, the testimony was somewhat less conclusive. Dr. Weiland testified as follows:
This evidence falls short of what is required under the Thompson standard. Dr. Weiland's testimony was that "its possible the infection would have been cured" if Hartman had been properly treated. Dr. Caplan, speaking generally about treatment of osteomyelitis, said that "you treat them [the infecting organisms] with ... antibiotics and given that, you have an excellent chance of saving the bone...."
As to the damage approach, the Hartmans have also failed to provide the requisite proof. The damage approach differs from the causation approach in that recovery under the former depends upon the quantitative measure of the lost chance. "It is well settled that compensatory damages must be proven with a reasonable degree of certainty and cannot be based upon speculation or mere conjecture." Davidson v. Miller, 276 Md. 54, 61-62, 344 A.2d 422, 427 (1975). When we apply this language to loss of chance damages, it is apparent the proof ordinarily must be based on quantitative measures.
Since the instruction directed the jury to apply the doctrine, it was error because the evidence did not support it under either approach. The Hartmans, nevertheless, argue that the error was not prejudicial because the evidence was sufficient to permit the jury to find in their favor under traditional tort law. Alternatively, they suggest that we remand on the issue of damages only. But the error was prejudicial, and the case must be remanded as to all issues.
The traditional rule governing burden of proof as to causation in medical malpractice cases was recently stated in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983). There, Judge Davidson said:
Id. at 666, 464 A.2d at 1026 [citations omitted; emphasis added].
Thus, under the traditional rule of Pierce (assuming the loss of chance doctrine does not apply) the Hartmans shouldered the burden of proving that Hartman had a better than 50% chance of full recovery absent the malpractice. The instruction, however, did not make this point of law clear to the jury. The critical portion of Judge Goudy's instruction provided:
As we have seen, the Pierce court defined "possibility" as a less than 50% chance. 296 Md. at 666, 464 A.2d at 1026. It further stated that proof as to future consequences must be in terms of probabilities (greater than 50% chance) and not possibilities (less than 50% chance). The lower court's instruction in this case, however, directed the jury to find for the Hartmans if there was "any substantial possibility ... of recovery." This was in contravention of Pierce. In essence, the jury was instructed to find for the Hartmans even if it believed that absent the malpractice, Hartman had less than a 50% chance of complete recovery.
The Hartmans argue that the instructions, if read in their entirety, Dean v. Redmiles, 280 Md. 137, 162-163, 374 A.2d 329, 343 (1977), did not direct a finding in contravention of Pierce. In support of their argument, the Hartmans point out that the trial judge instructed the jury that it must adhere to the preponderance of the evidence standard. The argument is unpersuasive. Although the trial judge did instruct the jury generally on the burden of proof issue, the instruction on causation in effect permitted it to depart from the preponderance standard on the causation issue.
The instruction was erroneous and harmfully so. Since the error went to causation, it affected the jury's determination as to Dr. Cooper's liability. Therefore, we reverse and remand for a new trial on all issues.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL. RESPONDENTS TO PAY THE COSTS.