. . .whether an estate can maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy.
Torts I, Pages 285–287
Herskovits v. Group Health Cooperative of Puget Sound
Supreme Court of Washington, 1983
Facts:
Decedent visited defendant for treatment. He had less than a 50 percent chance of survival, but defendant's failure to correctly diagnose reduced this by fourteen percent.
Procedural History:
Trial court granted defendant's motion for summary judgment.
Issues:
- Page 285, Paragraph 1
- Page 285, Paragraph 3
. . . whether a patient, with less than a 50 percent chance of survival, has a cause of action against the hospital and its employees if they are negligent in diagnosing a lung cancer which reduces his chance of survival by 14 percent.
Rule:
Page 286, Paragraph 2. . . once a plaintiff has demonstrated that the defendant's acts or omission have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.
Reasoning:
It doesn't really matter than it wasn't fifty-one percent likely, but plaintiff need a total recovery.
Holding:
Damages should be able to be awarded still but based on damages caused directly by premature death. Reversed and cause of action reinstated.