Maryland Rejects “Loss of Chance” Doctrine in Wrongful Death Cases

In traditional Maryland medical malpractice cases, the plaintiff is required to show proximate cause. This involves showing that the medical professional’s actions more likely than not caused the patient’s harm. The loss of chance doctrine is a legal principle that allows a plaintiff to obtain damages from a defendant for a heightened risk of death or injury, even if the plaintiff cannot show by a preponderance of the evidence that the ultimate injury was caused by the defendant’s negligence.

The loss of chance doctrine signifies a change in the traditional rule that health care providers are not liable for providing negligent care if a negative outcome is likely even with good care. Consider the fact that in some situations, a death due to a pre-existing condition may be probable whether or not a particular treatment is correctly done. For example, a person who is suffering from a serious illness may undergo a medical procedure that his or her physician performs negligently, as a result of which the person’s chance of survival is lowered by a certain percentage, and the person subsequently dies. Under the doctrine, the deprived chance of survival or the lost chance of the better outcome is the compensable injury.

Maryland is one of 24 states that have rejected the loss of chance doctrine. As a result, loss of chance damages cannot be pursued in a medical malpractice wrongful death claim under Maryland law. In fact, Maryland has held that, if a patient’s chances of survival are less than 50 percent at the time that the malpractice takes place, a medical professional may not be held liable for any acts or omissions that reduce or eliminate the patient’s chance of survival. In such cases, the court determines that the probable cause of death is likely the pre-existing condition, as opposed to the medical malpractice. Put another way, to recover compensation under the wrongful death statute in Maryland, the plaintiff must show by a preponderance of the evidence that the death was caused by malpractice on the part of the medical professional.

The issue came up in Marcantonio v. Moen, in which the Maryland Court of Special Appeals held that a health care provider who was accountable for a 20 to 30 percent reduction in the decedent’s chance of survival was not liable for malpractice. Here, the court applied Maryland law that mandates that there has to be a 51 percent likelihood that the physician caused the decedent’s death through malpractice.

Part of dealing with a medical malpractice case is hiring an attorney who is well versed in this area of the law. At Arfaa Law Group, our skilled Baltimore medical malpractice attorneys have the experience and dedication to handle your case properly. We understand that the legal process can be daunting, which is why we will handle your case as effectively and efficiently as possible. You can trust that we will vigorously advocate for your rights at every step of the way. For more information, do not hesitate to call 410-889-1850 or contact us online.

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