Herskovits (Plaintiff), and later his estate, sued Group Health Cooperative of Puget Sound (Defendant) for failing to diagnose his cancer, leading to a reduction in his chances of survival.
Where a plaintiff has shown a reduction of chance of survival as the result of a defendant’s actions, there is sufficient evidence of but-for causation for a negligence action to proceed.
Herskovits (Plaintiff) had a chronic cough and chest pain. He visited the hospital run by Group Health Cooperative of Puget Sound (Defendant) where he was prescribed cough medicine. Plaintiff got a second opinion from Dr. Ostrow about half a year later, where he was diagnosed with Stage 2 lung cancer, with a 25% chance of surviving 5 more years. Dr. Ostrow testified that if Plaintiff had been diagnosed when he visited Defendant, he may have only been at Stage 1 and had a 39% chance of living for 5 more years. Plaintiff died less than 3 years after his diagnosis.
Is evidence showing a reduction of chance of survival sufficient to show but-for causation in a negligence action?
Yes, evidence showing a reduction in survival chances can be sufficient to show but-for causation in a negligence action.
Justice J. Pearson
The concurrence differs from the majority opinion in that it believes a reframing of the actual injury suffered is necessary. If the injury suffered was death, Plaintiff has not shown but-for causation as Plaintiff likely would have died regardless. It is preferable to consider that the injury is the reduction of chance of survival because it does not lead to an arbitrary all or nothing approach.
The Defendant had argued the appropriate standard for Plaintiff to prove is that there would have been a greater than 50% chance of survival if Defendant had diagnosed the cancer. The Court believes preventing evidence of a reduction in survival chances from being considered by a jury would allow doctors and hospitals to get off anytime there was less than a 50% chance of survival. The Court states there is no danger in allowing the jury to speculate, or at least there is less than if an expert were to speculate about what would have happened without negligence.