Skip to navigation
Counsel That You Can Trust & Depend On


Guy DiMartino Oct. 31, 2014

LaPorte County medical malpractice lawyer discusses the loss of chance doctrine in Indiana medical malpractice cases.

A recent Washington state Supreme Court ruling reminded me that Indiana allows a cause of action for medical malpractice based on a patient's loss of chance of survival. This is the typical scenario in which the loss of chance doctrine may apply. A woman goes into her doctor because of a lump in her breast. Her doctor recommends a mammogram. The radiologist reads the mammogram as normal and the patient thinks she is okay. A year later, the patient complains again to her doctor about the breast lump, additional testing is performed and she has stage three breast cancer that spread to other organs. A review of the prior mammogram notes that there was a lesion on her breast. The patient has a poor prognosis and decides to file a medical malpractice case. As a general rule, we know that the earlier most breast cancers are diagnosed the better the outcome. Is the patient able to go forward with her medical malpractice case because she lost her chance of a good recovery if she was timely diagnosed?

In the Washington case, a patient was in an automobile accident and taken to an emergency room with head symptoms. A brain scan was normal but clinically the patient showed some neurologic changes. The emergency room doctor told the patient's son, another doctor, that he would order a neurology consultation. The patient was discharged without the consultation. The following morning the patient's condition was worse and she was brought back to the hospital and diagnosed with a stroke. Also, the in hospital the doctors delayed in getting a CT angiogram (special test to look at blood vessels), which 11 hours later showed a dissected carotid artery. The patient's expert witness and her two sons testified that had the condition been diagnosed timely the patient would have had a 50-60% better outcome. The better outcome would have been no disability or significantly less disability.

The Indiana Supreme Court reviewed the loss of chance theory in Mayhue v. Sparkman, a case in which the allegation was that the doctor failed to timely diagnose female cancer and adopted a similar analysis in the restatement of torts. Our Supreme Court said:

We think in those situations where a health care provider deprives a patient of a chance for recovery by negligently failing to provide medical treatment, the health care professional should not be allowed to come in after the fact and allege that the result was inevitable inasmuch as that person put the patient's chance beyond the possibility of realization. Health care providers should not be given the benefit of the uncertainty created by their own negligent conduct. To hold otherwise would in effect allow care providers to evade liability for their negligent actions or inaction in situations in which patients would not necessarily have survived or recovered, but still had a significant chance of survival or recovery.

Traditionally, the increased risk of harm or loss of chance doctrine have been applied to delayed diagnosis of cancer cases; however, the facts of the Washington case stated above, if in Indiana would probably invoke the increased risk of harm doctrine.

Indiana medical malpractice law is complex. If you have any questions about a delay or failure to diagnose cancer or any other medical condition, call a Michigan City medical malpractice lawyer at (219) 874-4878 or request a free copy of our informational book explaining the Indiana medical malpractice process.