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Herskovits v. Group Health Cooperative

Citation. 664 P.2d 474 (Wash. 1983)
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Brief Fact Summary.

The defendant negligently failed to diagnose the plaintiff’s cancer when the plaintiff first visited the hospital, leading to a 14% decline in the plaintiff’s chance of surviving the cancer. The plaintiff had less than a 50% of surviving the cancer to begin with.

Synopsis of Rule of Law.

When an actor’s negligence causes a decrease in the likelihood of a plaintiff’s survival, the plaintiff can recover for damages caused directly by premature death.


The defendant failed to diagnose the plaintiff’s lung cancer on his first visit to the hospital, proximately causing a 14% reduction in the plaintiff’s chance of survival. The plaintiff had less than a 50% chance of survival at all times. The plaintiff’s expert testified that as the tumor progressed from stage 1 to stage 2, the plaintiff’s chance of survival probably decreased form 39% to 25% due to the delay in diagnosis. The defendant contends that the plaintiff needed to show that he probably would have survived if not for the delayed diagnosis (at least a 51% chance).


Can the plaintiff recover for a probable reduction in statistical chance of survival despite having less than a 50% chance of survival to begin with?


Yes. Loss of chance of survival due to negligence allows a plaintiff to recover, even if that plaintiff most likely would not have survived absent the negligence.


Justice Dolliver

Judge Dolliver believes that proximate cause requires that evidence be provided to show that death more likely than not was caused by the defendant’s negligence. Although it can be attractive to loosen this standard in the face of a case of medical malpractice, the plaintiff still needs to prove that the defendant’s negligence probably proximately caused death.


Justice Pearson

Judge Pearson agrees that the trial court erred in granting the defendant’s motion for summary judgement, but he declines to agree with the majority’s reasoning. He believes that a plaintiff needs to have at least a 51% chance of survival to recover for damages arising from death.


The Restatement (Second) of Torts § 323 provides that one who undertakes to help another is liable for physical harm caused to that person if failure to exercise reasonable care increases the risk of harm. Several jurisdictions have chosen not to extend this rule to cases of loss of chance of survival, especially where the decedent more likely than not would have died anyway. Despite this, the court believes that to blanket release doctors from liability, regardless of the flagrancy of the negligence in question, in cases such as this one would be unfair to innocent plaintiffs. The court decides that the decrease likelihood of survival is enough to allow the proximate cause issue to go to a jury. Damages should be awarded based only on damages directly caused by premature death, such as medical expenses and lost earnings.

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