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Medical liability and the loss-of-chance doctrine: Is failure to diagnose negligence?
In one case, the court called a patient’s ‘lost opportunity’ due to surgeon negligence in treating a tibial plateau fracture a compensable damage.
To succeed in a medical malpractice case, a plaintiff/patient must prove that a surgeon’s negligence was the proximate cause of an injury that the law recognizes as compensable.
In most medical malpractice cases, the litigation battle lines are usually drawn over issues of negligence and causation. Rarely do the parties litigate whether the type of injury suffered by the patient is compensable.
Compensable injuries are those injuries where courts recognize the right of the injured party to receive monetary damages for the alleged negligently inflicted injury. Courts, on occasion, are faced with difficult decisions concerning whether malpractice claimants have, in fact, suffered injury that entitle them to monetary damages.
Surgeon’s choice
The concept is illustrated by an orthopedic malpractice case, Gage v. Morse, wherein a Missouri court was asked to decide whether a patient had suffered a compensable injury when her orthopedic surgeon internally fixed a medial plateau fracture in the knee with bone cement and screws, rather than a bone graft and buttress plate.
In particular, the court was asked to address the issue of whether the patient had suffered compensable injury because the surgeon’s choice of internal fixation and fracture management precluded certain treatment options.
The record showed that because the patient had osteoarthritis and osteoporosis, the tibial plateau fracture was comminuted. The orthopedic surgeon stabilized the injury with bone cement and metal screws. Fixation failed within 3 months of surgery, leading to fracture collapse and severe medial knee laxity. Conversion to a total knee replacement was advised.
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Because of the bone loss from cement and the loss of medial ligaments, a standard primary total knee could not be used. Instead, a more complicated type of reconstruction involving a hinged total knee had to be performed. Postoperatively, the patient’s knee became infected. Thereafter, the patient stopped seeing the orthopedic surgeon and consulted a different surgeon.
The patient ultimately had a poor outcome and sued the first surgeon for negligently failing to use bone graft and buttress plating. She contended that using bone cement and screws was suboptimal and that it made knee replacement with a primary, resurfacing type design impossible. She had no choice but to have a hinged knee prosthesis, which sacrificed more bone during implantation, had a longevity about half that of a standard total knee replacement and an increased risk of infection.
The patient referred to the orthopedic literature to find articles supporting each of these contentions. The patient did not accuse the surgeon of negligently causing an infection, since she did not believe that she could establish that the infection was preventable.
Expert testimony
The surgeon contended that the infection was probably already in the knee, or that it was unavoidable. The patient’s expert witness (the second surgeon the patient consulted during her treatment) acknowledged that the patient would likely still have the hinged prosthesis in her knee were it not for the infection. This statement did not address the long-term efficacy of the knee implant design, since the question was asked only 36 months after knee replacement. The expert witness testified that the patient’s later treatment options had been severely diminished by the operating surgeon’s decision to use a hinged design of a standard total knee, and that this choice was compelled by the negligent use of cement and screws to stabilize the initial fracture.
The orthopedic expert also testified that if the operating surgeon had reconstructed the patient’s knee during the initial surgery with bone grafting and a buttress plate (the standard treatment for such an injury), premature collapse and ligament laxity could have been avoided, thereby making subsequent reconstruction with a standard knee prosthesis a viable management option. Given these facts and circumstances, he concluded that the initial treatment of the patient’s fractured knee by means of cement and screws was below the standard of care.
Lost opportunity
The court held that the defendant operating surgeon’s negligence deprived the patient of the opportunity to have the knee reconstructed by a primary type of knee replacement, and that this “lost opportunity” entitled her to monetary damages.
Courts have long struggled with establishing consistent approaches to compensating patients for “lost opportunities.” This has arisen most frequently in the “loss-of-chance” doctrine involving cases that allege a failure to diagnose or a delayed diagnosis. Among the 50 state courts, some have adopted the loss-of-chance doctrine while others have rejected it.
Consider this example: A 32-year old male with a painful knee consults an orthopedic surgeon. Radiographs are inconclusive, and the orthopedist diagnoses a meniscus injury after appropriate management. MRI was deferred since symptoms were felt to be conclusive.
During arthroscopy, a small meniscus tear was addressed, and the patient improved. Vague pain and swelling persisted, though, and physical therapy, knee injections and analgesic treatment proved partially successful at resolving symptoms.
Seven months later, the patient noticed more swelling just proximal to the knee. MRI showed expected postoperative changes in the knee joint, along with a concerning lesion in the mid-femur. Further workup confirmed a malignancy with metastatic lesions; the oncologist estimated a 5-year survival probability of only 20%. The cancer would have responded favorably to early aggressive diagnosis and treatment. If treatment had been initiated 7 months earlier, experts opined that survival would have likely improved to 40%. In fact, previous radiographs showed calcifications present at the very edge of the image, but they could easily be missed during a cursory review. Nonetheless, timely workup of the radiographic abnormality would have diagnosed the cancer.
Was the surgeon negligent in not diagnosing the cancer earlier, even though the ultimate outcome would have been fatal anyway? Was the worsening of an already grim prognosis a compensable injury?
Loss-of-chance doctrine
In medical negligence cases, a plaintiff/patient must show that it was more likely than not that a surgeon’s negligent conduct resulted in injury or death. Under this traditional theory, if there was a negligent failure to diagnose cancer in a timely manner and the patient would have died even with an earlier diagnosis, the law would not allow the patient (while living) or the patient’s estate to collect monetary damages.
The loss-of-chance doctrine was created because some courts viewed any chance for life as precious and, thus, the compromising of that chance as compensable. Therefore, under the loss-of-chance doctrine, if a patient lost a 20%, 30% or 40% chance of living, that patient or his/her estate would be compensated, notwithstanding the inability to prove that death would likely have been avoided through earlier diagnosis and treatment. On the other hand, some courts have been reluctant to adopt the loss-of-chance doctrine for fear that it would lead to a floodgate of law suits based on speculation.
For more information:
- B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.