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Court Discusses Loss of Chance Doctrine in Maryland Medical Malpractice Claims

In Maryland medical malpractice cases, a plaintiff must show that the defendant’s negligence caused the plaintiff’s harm. In cases in which the plaintiff alleges the defendant’s negligence caused the wrongful death due of a loved one, however, the defendant may be able to argue that the loss of chance doctrine operates to bar the recovery of compensation. The loss of chance doctrine is not always applicable, however, as discussed in a recent Maryland medical malpractice case in which the court explained the doctrine’s parameters. If you lost a loved one due to negligent medical care, it is in your best interest to speak to a skillful Maryland medical malpractice attorney to examine what damages you may be able to recover.

Facts of the Case

It is reported that the plaintiff’s decedent presented to the defendant doctor in February 2013, with complaints of pain in his tongue. The defendant performed a scrape biopsy, which did not indicate cancerous cells were present, but the pathologist noted that the sample was clinically suspicious and may not represent the entire lesion. No further actions were taken at that time, however. In May 2014, the plaintiff’s decedent visited the defendant a second time, and the defendant recommended an excisional biopsy, which was performed in June. The second biopsy revealed that the plaintiff’s decedent was suffering from invasive squamous cell cancer. The plaintiff’s decedent underwent aggressive treatment but ultimately passed away due to the cancer.

It is alleged that the plaintiff failed a medical malpractice lawsuit against the defendant, alleging that the defendant’s failure to diagnose the plaintiff’s decedent in February 2013 caused the decedent’s harm. Specifically, the lawsuit set forth survival and wrongful death claims. At trial, the defendant filed a motion for judgment at the close of the plaintiff’s case, arguing that the loss of chance doctrine barred the plaintiff’s claims. The trial court granted the defendant’s motion, and the plaintiff appealed.

The Loss of Chance Doctrine

Upon review, the appellate court found that the trial court erred in dismissing the plaintiff’s claims based on the loss of chance doctrine. The court explained that the loss of chance refers to the decreased chance of survival due to negligent treatment, where the likelihood of recovering from the underlying illness or injury was less than fifty percent and therefore improbable. A loss of chance may also include the loss of the possibility of a better medical outcome or the avoidance of an injury or disease.

The Maryland courts decline to apply the loss of chance doctrine in wrongful death and survival claims, explaining that a plaintiff could not recover full damages for the death of a person who had less than a fifty percent chance of survival, because the plaintiff will be unable to establish that the defendant’s negligence proximately caused the plaintiff’s decedent’s harm. In other words, when a person has less than a fifty percent chance of survival due to an underlying health issue, it is more likely than not that the underlying health issue caused the person’s death, rather the negligence of the defendant.

In the subject case, the appellate court found that the loss of chance doctrine was inapplicable because the plaintiff did not argue that the defendant’s acts reduced the decedent’s chance of survival. Further, the appellate court noted that the plaintiff’s decedent’s survival rate at the time of the alleged negligence was eighty percent. Thus, the appellate court reversed the trial court ruling.

Speak to a Trusted Maryland Medical Malpractice Attorney

If you suffered the loss of a loved one because of a doctor’s incompetent care, it is prudent to speak to an attorney to assess your potential claims. The trusted Maryland medical malpractice attorneys of Arfaa Law Group can assist you in pursuing the full amount of damages recoverable under the law, to help you heal and move forward with your life. We can be reached at (410) 889-1850 or via the form online to set up a meeting.

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