Suppose because of medical negligence the patient’s chances of survival – or other better outcome – are significantly reduced, but perhaps still less than even. The doctors might argue that even though they were negligent, their negligence did not cause the patient’s death. 

 

That argument fails in Washington. Washington courts recognize the cause of action for lost chance for a better outcome.

 

“To decide otherwise would be a blanket release from liability for doctors

and hospitals any time there was less than a 50 percent chance of

survival, regardless of how flagrant the negligence.”[1]

 

A loss of chance claim applies not only to loss of a better outcome in a wrongful death action, but also where the result of the harm is short of death.[2]

 

 

Examples where Washington courts have applied the doctrine of lost chance of a better outcome include:

 

  • The estate presented evidence showing that if the lung cancer had been timely diagnosed, the possibility of a 5-year survival was 39 percent, but by the time the decedent was the estate presented evidence showing that if the lung cancer had been timely diagnosed, the possibility of a 5-year survival was 39 percent, but by the time the decedent was diagnosed, the possibility dropped to 25 percent.[3]
  • Expert testimony presented that absent negligence the patient “would have had a 50 to 60 percent chance of a better outcome [of] no disability or, at least, significantly less disability.”[4]

 By Seattle personal injury attorney Travis Scott Eller

 

 



[1] Herskovits v. Group Health Coop. of Puget Sound, 99 Wn.2d 609, 634, 664 P.2d 474 (1983).

[2] Mohr v. Grantham, 172 Wn.2d 844, 846-47, 262 P.3d 490 (2011).

[3] Herskovits, 99 Wn.2d at 612.

[4] Mohr, 172 Wn.2d at 849.