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

    . . .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.

  • 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.

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