Perez v. Las Vegas Medical Center , 107 Nev. 1 ( 1991 )

OPINION

By the Court,

Rose, J.:

This is an appeal from a summary judgment entered against the appellant (hereinafter, Ms. Perez) in a wrongful death action. The district court held that Ms. Perez could not prove that the alleged negligence of the health care provider was the legal cause of the death, because the decedent probably would have died anyway due to his serious preexisting medical condition. We adopt the “loss of chance” doctrine for medical malpractice cases, and under that doctrine Ms. Perez raised genuine issues of material fact to the district court. Accordingly, we reverse the grant of summary judgment and remand this case for further proceedings.

FACTS

The pertinent facts submitted by the parties in connection with respondents’ motion for summary judgment are as follows. On April 15, 1985, Marco Lopez, a prisoner at the Clark County Detention Center, died of a massive brain hemorrhage, due apparently to an aneurysm or a congenital defect in an artery.

Lopez had been detained and incarcerated on April 3, 1985. Two days later, after he complained that he was ill, Lopez was taken to the Las Vegas Medical Center, which was under contract to treat prisoners from the detention center. From April 5-9, Lopez was confined in the medical ward. During this time physicians made no attempt to diagnose the persistent headaches of which Lopez was complaining. Lopez was returned to jail. On April 15, Lopez was discovered in his cell by a nurse to be having seizures. Although the duty physician, Dr. Gregory, was notified by telephone of the seizures, no examination or treatment other than administration of valium and phenobarbital was given Mr. Lopez. A few hours later, Mr. Lopez was found dead in his cell.

Based on this death, Ms. Perez brought the present lawsuit, alleging wrongful death due to negligence on the part of the responsible medical providers. Dr. Tiholiz, a general practitioner from Los Angeles, testified in a deposition on behalf of Ms. Perez. Dr. Tiholiz stated that Lopez would have had a “reasonable chance” of surviving the hemorrhage if he had been given prompt and proper medical care. Dr. Tiholiz admitted, however, that Lopez probably did not have a greater than fifty percent chance of surviving the hemorrhage, even given proper medical care. Additionally, Carolyn Sabo, a professor of nursing at the University of Nevada Las Vegas, testified in a deposition that, if given proper medical care and diagnosis, Lopez “might” have lived. An expert on behalf of the respondents, however, suggested that Mr. Lopez’ chances of surviving such a hemorrhage would be very slight.

Respondents moved for summary judgment against Ms. Perez on the ground that any negligence by health care providers could not have been the legal cause of Lopez’ death, since Lopez probably would have died anyway due to his serious preexisting condition. Based on the evidence stated above, the district court entered summary judgment in favor of respondents. Ms. Perez appeals the order granting summary judgment.

LEGAL DISCUSSION

The question presented by this appeal is whether the district court erred by granting respondents’ motion for summary judgment on appellant’s wrongful death claim alleging medical malpractice. “Summary judgment is appropriate only when the moving party is entitled to judgment as a matter of law, and no genuine issue of material fact remains for trial;” properly supported factual allegations of the party opposing summary judgment must be accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). Additionally, the pleadings and documentary evidence must be construed in the light which is most favorable to the party against whom the motion for summary judgment is directed. Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982). Litigants are not to be deprived of a trial on the merits if there is the slightest doubt as to the operative facts. Id.

First we address the question of respondents’ entitlement to judgment as a matter of law. Ms. Perez sued on a negligence theory. To prevail on a negligence theory, the plaintiff generally must show that: (1) the defendant had a duty to exercise due care towards the plaintiff; (2) the defendant breached the duty; (3) the breach was an actual cause of the plaintiff’s injury; (4) the breach was the proximate cause of the injury; and (5) the plaintiff suffered damage. Beauchene v. Synanon Foundation, Inc., 151 Cal.Rptr. 796, 797 (Cal.Ct.App. 1979). In order to establish entitlement to judgment as a matter of law, respondents must negate at least one of the above five elements of the plaintiff’s case.

The issue disputed on this appeal is whether Ms. Perez failed, as a matter of law, to establish the existence of actual causation, i.e., that the alleged medical malpractice actually caused the harm complained of. As a general rule in medical malpractice cases, the plaintiff must prove that the alleged negligence more probably than not caused the ultimate injury (rule of proving causation by a preponderance of evidence). See Orcutt v. Miller, 95 Nev. 408, 411-12, 595 P.2d 1191, 1193 (1979). Respondents argue that the evidence shows that Mr. Lopez probably would have died anyway due to his serious preexisting physical condition. Therefore, respondents contend, only the preexisting medical ailment, and not the alleged medical malpractice, can be considered the probable, or preponderant, cause of Lopez’ death. In short, respondents contend that Ms. Perez cannot, as a matter of law, establish the element of actual causation according to the traditional preponderance requirement.

The issue of first impression presented by respondents’ argument is whether the preponderance requirement for proof of causation operates to bar recovery in medical malpractice cases where there is a fifty percent or greater chance that the patient’s underlying ailment caused the death (i. e., where the plaintiff has a fifty-fifty or lower chance of survival due to a serious preexisting medical problem). There are many cases coming down on both sides of this question. See Annotation, Medical Malpractice: “Loss of Chance” Causality, 54 A.L.R.4th 10 (1987). Applying the traditional preponderance requirement strictly, some courts have held that plaintiffs with fifty-fifty or lower chances of survival due to their original ailment cannot demonstrate that medical malpractice was the actual cause of the death. See, e.g., Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984). Several other courts have relaxed the traditional preponderance requirement for causation to allow limited recovery under these circumstances. See, e.g., McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467 (Okl. 1987); Herskovits v. Group Health Co-op., 664 P.2d 474 (Wash. 1983).

We conclude that the large line of cases which permits recovery under these circumstances represents the better view. There are many good arguments against applying the preponderance rule of causation strictly to bar recovery in cases such as this. See especially, Herskovits, 664 P.2d at 486-87 (Pearson, J., concurring) (quoting King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981)). Of the various arguments against the position urged by respondents, the following is most fundamental: the respondents’ position would bar any recovery in tort on behalf of the survivors of many potentially terminal patients, no matter how blatant the health care provider’s negligence. Through negligence, a physician or other health care provider could reduce a patient’s chances of survival from as high as fifty percent to, for example, ten percent, and yet remain unanswerable in the law of tort. This position is simply untenable. As the McKellips court explains:

Health care providers should not be given the benefit of the uncertainty created by their own negligent conduct. To hold otherwise would in effect allow care providers to evade liability for their negligent actions or inactions in situations in which patients would not necessarily have survived or recovered, but still would have a significant chance of survival or recovery.

McKellips, 741 P.2d at 474. The disadvantages of the position urged by respondents are both more certain and more severe than any disadvantages of the position we adopt today. Additionally, it is important to recall that no cause of action will lie absent some instance of negligence by the health care provider.

As discussed in McKellips, courts have adopted various rationales in order to avoid the harsh and unjustified result just discussed. We conclude that the best rationale supporting recovery in these circumstances is the “loss of chance” doctrine. Under this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine L. Rev. 973 (1985) (authored by Patricia L. Andel). Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation. Specifically, “[t]he amount of damages recoverable is equal to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.” McKellips, 741 P.2d at 476.

By defining the injury as the loss of chance of survival, the traditional rule of preponderance is fully satisfied. In cases in which the plaintiff prevails, it can be said that the medical malpractice more probably than not decreased a substantial chance of survival and that the injured person ultimately died or was severely debilitated. Specifically, in order to create a question of fact regarding causation in these cases, the plaintiff must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care. In accord with other courts adopting this view, we need not now state exactly how high the chances of survival must be in order to be “substantial.” We will address this in the future on a case by case basis. There are limits, however, and we doubt that a ten percent chance of survival as referred to in the example in the dissenting opinion would be actionable. Survivors of a person who had a truly negligible chance of survival should not be allowed to bring a case fully through trial. Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will have little monetary incentive to bring a case to trial because damages would be drastically reduced to account for the preexisting condition.

Having addressed the applicable legal standards, we turn now to the question of whether Ms. Perez presented sufficient proof in connection with the motion for summary judgment to create a question of fact on the issue of causation. We conclude that she did. As in McKellips, we do not require that the expert testimony specifically quantify the percentage chance of survival in order to create a question of fact on causation; specific percentages are necessary only at later stages in determining the precise measure of damages. McKellips, 741 P.2d at 475. In the present case, Dr. Tiholiz testified that Mr. Lopez had a reasonable chance of survival given proper medical attention. We recognize that Mr. Lopez’ preexisting condition appears to have been grave indeed and that Dr. Tiholiz’s opinion is not particularly strong or specific. Nevertheless, under the summary judgment standards stated above, we must accept this statement as true and, moreover, we must draw all inferences from this statement in a manner which is favorable to the party opposing summary judgment. Interpreted in a manner most favorable to Ms. Perez, Dr. Tiholiz’s statement and other deposition testimony fairly imply that, through prompt and proper decompression and other treatment, Mr. Lopez would have had a substantial chance of survival. Because more than a slight doubt remains as to Lopez’ chances of survival, Ms. Perez was entitled to bring the issue of causation to trial. Therefore, Ms. Perez succeeded in raising a genuine issue of material fact on the issue of causation pursuant to the loss of chance doctrine and the motion for summary judgment was improvidently granted.

The nature and quality of Mr. Perez’ survival is not an issue with which we must concern ourselves at this time. It was not fully explored below and not the basis for the district court’s decision. Further, Dr. Tiholiz, the plaintiff’s expert, used the term survival without qualification. Giving every reasonable inference to the appellant against whom summary judgment was granted, we conclude that Dr. Tiholiz’s unqualified use of the word survival meant survival with a reasonable quality of life. If the respondents felt it was important to explore what Dr. Tiholiz meant by survival, they could have examined further on this point.

The dissent expresses fears that the floodgates of litigation will be opened by this opinion. Nothing of the sort will occur. Rather, the rule will give deserved redress in infrequent situations similar to this case. And by adopting the “loss of chance” doctrine, a health care provider will not be able to avoid responsibility for negligent conduct simply by saying that the patient would have died anyway, when that patient had a reasonable chance to live.

For the reasons stated above in this opinion, the order granting respondents’ motion for summary judgment is reversed and the case remanded for further proceedings consistent herewith.

Mowbray, C. J., and Springer, J., concur.