Econ 4040 1st Edition Lecture 25 Outline of Past Lecture I Bushey Outline of Current Lecture II Herkovits Current Lecture Herskovits v Group Health Cooperative of Puget Sound Brief Fact Summary Herskovit s Plaintiff malpractice suit was dismissed by a trial court because she failed to show that her decedent would probably have survived except for the alleged malpractice Synopsis of Rule of Law In a wrongful death malpractice suit a Plaintiff is not required to prove that the decedent would more likely than not have survived except for the alleged malpractice Facts Herskovit s Plaintiff decedent went to the Group Health Cooperative of Puget Sound Defendant complaining of coughs and chest pain Defendant failed to diagnose lung cancer which was then diagnosed by a different facility one year later The decedent s lung was then removed but he died 20 months later Plaintiff sued Defendant for negligence in its failure to diagnose the lung cancer Defendant moved for summary judgment arguing that the decedent suffered from a probability of dying even if the diagnosis would have been made promptly At best the decedent s chance of recovery was 39 percent the Defendant s alleged negligence reduced it to 25 percent Summary judgment was granted by the trial court Plaintiff appealed Issue In a wrongful death malpractice suit is a Plaintiff required to prove that the decedent would more likely than not have survived except for the alleged malpractice Held Dore J No In a wrongful death malpractice suit a Plaintiff is not required to prove that the decedent would more likely than not have survived except for the alleged malpractice To hold otherwise would have the practical effect of protecting medical providers from liability whenever a decedent had less than 50 percent chance of living no matter how extreme the negligence was This is not a proper result Analytically the issue boils down to the jury question of proximate cause Using this case as an example the question is whether a These notes represent a detailed interpretation of the professor s lecture GradeBuddy is best used as a supplement to your own notes not as a substitute decrease from 39 percent to 25 percent in chances of survival could be considered a big factor in bringing about injury As noted before this is a jury question and cannot be resolved at the summary judgment level Therefore the trial court erred by granting summary judgment Reversed Dissent Brachtenbach J The basic question is whether the patient died as a result of the doctor s malpractice This cannot be so when the patient would probably have died anyway Concurrence Pearson J All that is required to be shown is that the alleged malpractice caused a significant reduction in chance of survival Discussion The opinion was only concerned with liability However in the context of this case damages recoverable would be an issue One possible way to measure damages would be to make them commensurate with the lessening of decedent s chance of survival as a result of the malpractice In this case Plaintiff would receive 14 percent of full recovery under the measure