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“Loss of Chance”

February 16, 2021

In this medical malpractice case the Plaintiffs argued that when the lower court granted Defendants’ Motion for Judgment Notwithstanding the Verdict (JNOV) it erroneously applied the principals of “loss of chance,” which is a tort theory that permits recovery for avoiding some adverse result or of a achieving a more favorable result. In other words “decreasing the chance of survival as a result of negligent treatment where likelihood of recovery from the pre-existing disease. or injury, prior to any alleged negligent treatment was improbable, i.e. 50% or less.”

In the underlying case of Barton v. Advanced Radiology the patient underwent a mammogram in November 2011 that was reported as normal. 20202 Md. App. LEXIS 1125 (2020). In May 2011 she returned with a complaint of a lump at which time a repeat mammogram and ultrasound were performed and reported as normal. In August 2013 a repeat mammogram revealed Stage III breast cancer. Plaintiff’s causation expert testified that if the Defendants had diagnosed the patient with cancer in May 2011 she would have had “ an 80% chance of 5[-] year survival.” Fifteen months later, after diagnosis, and the patient started treatment, she had a 60% chance of survival. Based on the testimony the Defendants moved for judgment in their favor arguing that Plaintiffs’ expert did not opine that the health are providers negligence was the cause of death because she had a 66% chance of survival, after diagnosis. Defendants’ motion was denied, and a verdict was returned in favor of the Plaintiffs and the subsequent JNOV was filed.

On appeal the court stated that “loss of chance” remains unavailable as a cause of action in medical malpractice and survival actions, and disagreed that analysis was used by the lower court. Rather the lower court determined there was insufficient evidence as to causation. In reversing the lower court’s decision it found that the jury could have reasonably concluded that if Defendants had caught the patient’s cancer in May 2012 she had an 80% probability of not dying from Stage I cancer, but the Defendant did not intervene, however, and the cancer developed to Stage III and caused her death. The court reversed the JNOV and reinstated the Plaintiff’s verdict.