. . .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.
Herskovits v. Group Health Cooperative of Puget Sound
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.