Claims for injury or death from medical malpractice are perhaps an all too frequent part of the caseload handled by the Maryland courts. When a cancer patient passes away, complex medical and legal issues are often involved. Maryland’s intermediate appellate court addressed one of those issues, the loss of chance of survival, last week in the case of Marcantorio v. Moen.
According to the court’s majority opinion, the plaintiff’s wife was diagnosed with uterine cancer in April of 2001. She was then treated at Johns Hopkins Hospital, but ultimately died in May of 2005. Six months before her death her husband filed suit against her gynecologist, the radiologist who read a sonogram, and the corporations that employed them. After she passed away, the law suit was amended to bring claims on behalf of the husband for the wrongful death of his wife, and on behalf of her estate.
At issue was an alleged delay in the diagnosis of her cancer. The lawsuit alleged that the gynecologist was treating the patient for menopause symptoms, and as a result at one point ordered a sonogram. The radiologist did not report any abnormality. However, the plaintiff claimed that the doctor should have noted a mass on the test, which would have led to further diagnostic studies and earlier diagnosis and treatment.
The suit also claimed that the gynecologist should have ordered a biopsy earlier that was done, resulting in a seven month delay in the diagnosis. The plaintiff hired expert medical witnesses, as happens in such suits, to address not only the standard of care of the physicians, but the difficult issue of whether the death of the patient was caused by a negligent breach of that standard of care. The suit did not claim damages for increased costs of care or pain and suffering, but that the death of the patient was caused by the doctor’s alleged malpractice.
The plaintiff’s doctors testified, in summary, that the chance that such a patient would recover if the cancer had been diagnosed when they say it should have been was in the range of 80%. With the delay in diagnosis, they claimed that the chances fell to 50 to 60%. The question then became whether such a decrease in the chance of survival even stated a claim under Maryland law. The trial judge threw the case out before trial, and a panel of the Court of Special Appeal’s affirmed that decision on a 2-1 vote.
The majority opinion reviewed the law in Maryland and other states on whether a loss of chance of survival is compensable. It noted that in 24 states, a plaintiff’s family can recover for wrongful death due to medical malpractice if the doctor’s negligence led to a loss of a “substantial chance of survival.” Maryland, the Court noted, is one of 16 states where the courts have specifically ruled that such a claim is too speculative and not allowed. The reason, the Court said, is the plaintiff in such a case has the burden of proving that it is more likely than not that the wrongful act caused the injury.
Since the injury here was death, the plaintiff needed evidence to show that the death was more likely than not caused by the malpractice. A decrease of 20-30% of the patient’s chances, where the delay still gave her more a 50% chance of survival, did not meet the test. The dissenting judge felt otherwise, and it remains to be seen if Maryland’s highest court will hear this case and weigh in again on this difficult issue.