Spokane Journal of Business

Complex ‘lost chance’ lawsuit against Providence tossed

Case alleged negligence cut short ill woman’s life

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A Washington state appellate court panel here recently rejected a lawsuit against Spokane’s Providence Sacred Heart Medical Center & Children’s Hospital and related parties that was predicated partly on what’s called a “lost chance” malpractice complaint.

The three-member panel unanimously upheld a Spokane County Superior Court judge’s 2012 dismissal of litigation originally initiated in January 2010 by Betty L. Zachow. Zachow died about two months later, and her daughter, Robin Rash, as personal representative for Zachow’s estate, later filed a separate suit that—over the course of a complicated procedural process—was consolidated with the first one and included a wrongful death claim.

Rash asserted that the hospital’s failure to administer two doses of prescribed blood pressure medication to Zachow, then 82, following knee replacement surgery in March 2008 caused her to suffer major health complications that ultimately shortened her life. However, Zachow already suffered from heart problems, which made reaching such a finding—and quantifying her reduced life expectancy—more difficult, court documents indicate.

In its ruling, the appellate court panel said Rash “invites us to enter a path untraveled” by pursuing a claim for lost chance of survival or lost chance of a better outcome, without any expert testimony as to a percentage of a lost chance and or that medical negligence likely shortened her mother’s life.

 “We decline the request to follow an unchartered course,” it said in granting a summary judgment in Sacred Heart’s favor, adding, “A higher authority will need to map any new trail.”

Court documents indicated that, prior to surgery, Zachow provided the hospital with a list of her medications, which included metoprolol, a beta blocker used to treat high blood pressure. Before surgery, she suffered from enlargement of the heart, which was a genetic condition, and other heart ailments. Beta blockers reduced the heart rate and also the chance of strokes. 

Following her surgery, the suit alleged, the hospital failed to give her two doses of metaprolol—one that night and one the next morning—after which she suffered a series of complications and was transferred to the hospital’s intensive care unit. However, she recovered and was released 10 days after entering the hospital.

In April of that year, the hospital’s risk management director acknowledged the medical error and offered to waive the charges for Zachow’s care, but Zachow never responded, court documents said.

Over the next two years, she suffered two strokes, and she then filed suit in early 2010, alleging that medical negligence had caused her to suffer cardiomyopathy, emotional distress, and reduced life expectancy. In March of that year, she suffered her third stroke and died, the documents said.

In Rash’s subsequent lawsuit, her attorney alleged that Zackow suffered pulmonary edema, or fluid in the lungs, and aspiration pneumonia as a result of the hospital’s actions, and that she left the hospital in a weakened state from which she never recovered. The attorney conceded, though, that her heart condition would have continued to deteriorate even without the hospital’s failure to give her the two blood pressure medication doses.

A “lost chance” claim—encompassed in the lawsuit that Rash pursued—is a type of medical malpractice suit, and can be in the form of a “lost chance of survival” or a “lost chance of a better outcome” cause of action, the appellate panel said.

In a “lost chance of survival” claim, the patient died from a preexisting condition and likely would have died from the condition even without the negligence of the health care provider. Nevertheless, the negligence is alleged to have reduced the patient’s chances of surviving the condition by 50 percent or less.

 In a “lost chance of a better outcome” claim, the mortality of the patient isn’t at issue, but the chance of a better outcome or recovery is alleged to have been reduced by professional negligence.

In a traditional medical malpractice case applying a “but for” causation standard—meaning “but for” the defendant’s negligence, the plaintiff wouldn’t have been injured—the negligence likely led to a worse than expected outcome, the appellate panel said, citing case law. In contrast, under a lost-chance-of-a-better-outcome theory, the bad result was likely even without the health care provider’s negligence, it said.

Rash sought to be able to ask a jury to determine damages based upon a shortened life of  5 1/2 years, based on her mortality table life expectancy of 7.56 years at the time of her surgery and the fact that she lived for two more years.

The appellate panel held, though, that a trial court shouldn’t allow use of standard life expectancy tables for a reduced life expectancy claims, and that specific medical testimony as to the likely decrease in a patient’s life span is required in such a case.

“Using the average life expectancy for a woman the age of Betty Zackow is not fair, because her preexisting conditions would likely have led to a premature death without the negligence of SHMC,” it said.

Kim Crompton
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