Citation. Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. Apr. 2, 1992)
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Brief Fact Summary.
The Circuit Court of St. Louis County (Missouri) dismissed appellant’s petition for damages, filed under the wrongful death statute, against respondent health center, doctors, and radiology clinic due to a failure to state a cause of action. Appellant widow sought review
Synopsis of Rule of Law.
A causal connection between respondents’ negligence and decedent’s death exists where respondent’s negligence deprives decedent of a chance of recovery.
Mr. Wollen died from gastric cancer. In this suit, his widow claims that the defendants involved in medical treatment negligently failed to diagnose or test and that had they correctly tested or treated, Mr. Wollen would have had a 30% chance of survival and cure. Appellant widow filed a wrongful death action against respondent health center, doctors, and radiology clinic. Respondents each filed a motion to dismiss the action on the ground that the petition failed to plead a causal connection between respondents’ negligence and decedent’s death.
Did the trial court err in ruling in favor of the health center, doctors, and radiology clinic?
Yes. The Missouri Supreme Court vacated the lower court’s decision dismissing the petition filed by appellant decedent’s widow for damages filed under the wrongful death statute in favor of respondent health center, doctors, and radiology clinic. The court remanded, holding that the alleged facts would support an action for lost chance of recovery.
The standard of review in professional negligence cases differs slightly. Because professionals such as doctors, lawyers, engineers or accountants have specialized skills and training courts rely on the expertise of the profession to determine the appropriate standard of care. In professional negligence the defendant’s compliance with the custom of the profession is determinative; where the defendant comports herself in a manner consistent with the standards of her profession, she is shielded from negligence liability.
At issue in Wollen is a slightly different consideration: the degree to which a physician may be liable where the question is one concerning a patient’s likelihood of survival. The Missouri Supreme Court framed the issue in the following manner: “A patient with cancer, like Mr. Wollen, would pay to have a choice between three unmarked doors – behind two of which were death, with life the third option. A physician who deprived a patient of this opportunity, even though only a one-third chance, would have caused her real harm.” Given these circumstances, the court pointed out, “the patient does suffer a harm when the doctor fails to diagnose or adequately treat a serious injury or disease. The harm suffered is not, however, the loss of life or limb. The harm is the loss of the chance of recovery.”
With the foregoing in mind, the court employed the following equation: “[D]amages can only be expressed by multiplying the value of a lost life or limb by the chance of recovery lost, (and )the proper place for such an inquiry is in the damages stage rather than in the liability/causation determination.” Concluding, the courted stated, “Rather than adopting a theory of proportional causation, this Court chooses to recognize a cause of action for lost chance of recovery in medical malpractice cases.” Thus court remanded the case for further proceedings and held that the alleged facts would support an action for lost chance of recovery.