Smith v. Parrott

Smith v. Parrott (2002-322); 175 Vt. 375; 833 A.2d 843

2003 VT 64

[Filed 01-Aug-2003]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2003 VT 64

                                No. 2002-322


                                                 Supreme Court
  Stephen L. Smith
                                                 On Appeal from
       v.	                                 Windsor Superior Court


  Thomas B. Parrott	                         March Term, 2003


  Alan W. Cook, J.

  Norman E. Watts, Woodstock, for Plaintiff-Appellant.

  Laura Q. Pelosi and John Davis Buckley of Theriault & Joslin, P.C.,
    Montpelier, for  Defendant-Appellee.


  PRESENT:  Amestoy, C.J., Dooley and Skoglund, JJ., and Allen, C.J.
            (Ret.) and Gibson, J. (Ret.), Specially Assigned


       ¶  1.  ALLEN, C.J. (Ret.), Specially Assigned.    Stephen L. Smith,
  plaintiff in this medical malpractice action, appeals from a summary
  judgment of the Windsor Superior Court in favor of defendant Thomas
  Parrott, M.D.  Plaintiff contends the trial court erred in: (1) finding
  that plaintiff had failed to show a probability that Dr. Parrott's
  negligence was the cause of his paralysis; and (2) rejecting plaintiff's
  theory of recovery based on a showing that Dr. Parrott's negligence had
  reduced plaintiff's chances of recovery, even if it was not the probable
  cause of his injuries.  We affirm.
   
       ¶  2.  The undisputed material facts may be briefly summarized.  On
  July 31, 1995, plaintiff awoke to find that he had no motor control over
  the use of his left foot.  That afternoon he went to see Dr. Parrott, a
  family practitioner in White River Junction.  Dr. Parrott noted that
  plaintiff had had two prior back surgeries, and described plaintiff's
  condition as a "[d]ramatic foot drop on the left side." Foot-drop is a
  neurological condition in which the motor functions of the foot and
  lower-leg are diminished or terminated.  Dr. Parrott referred plaintiff to
  a neurosurgeon.
        
       ¶  3.  Eleven days later, plaintiff was examined by Dr. Joseph
  Phillips, a neurosurgeon at Dartmouth-Hitchcock Medical Center.  Dr.
  Phillips concluded that plaintiff's condition was complete or permanent,
  and that there was no possibility of any functional recovery.  Plaintiff
  underwent surgery in early September to alleviate pain.  His motor
  functions did not improve. 
   
       ¶  4.  Plaintiff filed a medical malpractice action against Dr.
  Parrott, alleging that his failure to advise plaintiff of the need for an
  immediate neurological examination, and his failure to arrange such an
  examination, had resulted in the deterioration of plaintiff's condition to
  the point of permanence by the time he saw Dr. Phillips. (FN1)  Following
  extensive discovery, Dr. Parrott moved for summary judgment, asserting that
  plaintiff had failed to adduce evidence that Parrott's conduct - even if
  below the standard of care - was the proximate cause of plaintiff's
  injuries.  The motion cited Dr. Phillips's deposition testimony that
  plaintiff's foot-drop was complete two to three weeks before his
  neurological examination on August 11, and therefore that the delay in
  surgery had no impact on plaintiff's chances of recovery.  Dr. Parrott also
  relied on the deposition testimony of plaintiff's expert witness, Dr.
  Donald Myers, who had initially opined that an earlier consultation with a
  neurosurgeon could have yielded a "50-50 chance" of  "some recovery," but
  later amended his opinion to state that, in light of plaintiff's history of
  back surgery, the chance of some recovery was "a little bit" less than
  fifty percent.  

       ¶  5.  In a written decision, the trial court granted the motion,
  finding that plaintiff had failed to show that his condition was more
  likely than not the result of Dr. Parrott's negligence, and rejecting
  plaintiff's effort to recover on a lesser showing under the so-called "loss
  of chance" doctrine.  This appeal followed.

       ¶  6.  In reviewing a summary judgment we apply the same standard as
  the trial court, affirming the judgment only when the moving party has
  demonstrated that there are no genuine issues of material fact and the
  party is entitled to judgment as a matter of law, and resolving all
  reasonable doubts in favor of the party opposing the motion.  O'Donnell v.
  Bank of Vt., 166 Vt. 221, 224, 692 A.2d 1212, 1214 (1997).  Plaintiff
  contends the trial court abused this standard in finding that he had failed
  to satisfy the traditional causation rule requiring evidence of a
  likelihood, or a greater than fifty percent chance, that Dr. Parrott was
  the cause of plaintiff's paralysis.  Plaintiff relies on Dr. Myers's
  testimony that an earlier neurological examination would have yielded about
  a fifty-fifty chance of some recovery, asserting that the court should have
  erred on the high side.  As noted, however, Dr. Myers modified his opinion
  to state that in plaintiff's case the chances of recovery were less than
  fifty percent.  Thus, plaintiff failed to adduce evidence establishing the
  essential element of causation, and summary judgment was properly entered. 
  See Gallipo v. City of Rutland, 163 Vt. 83, 86, 656 A.2d 635, 638 (1994)
  (summary judgment will be granted if, after adequate time for discovery,
  party fails to make showing sufficient to establish essential element of
  the case on which the party will bear burden of proof at trial).
   
       ¶  7.  Plaintiff also contends the trial court should have departed
  from the traditional causation standard to allow recovery based on evidence
  that Dr. Parrott's failure to procure an immediate neurological examination
  reduced plaintiff's chances of recovery, even if the evidence failed to
  show a likelihood that it was the cause of his injuries.  Plaintiff relies
  on the so-called "loss of chance" doctrine discussed in the legal
  literature and accepted in a growing number of states.  As explained by its
  principal proponent, "[u]nder the loss-of-a-chance doctrine, the plaintiff
  would be compensated for the extent to which the defendant's negligence
  reduced the victim's likelihood of achieving a better outcome,
  notwithstanding the fact that the likelihood may have been reduced by less
  than fifty-one percent."  J. King, "Reduction of Likelihood" Reformulation
  and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev.
  491, 493 (1998); see also Professor King's original seminal article,
  Causation, Valuation, and Chance in Personal Injury Torts Involving
  Preexisting Conditions and Future Consequences, 90 Yale L. J. 1353 (1981). 
   
       ¶  8.  The loss-of-chance doctrine has received substantial support
  among academic commentators and has been accepted - in one form or another
  -  in a growing number of jurisdictions, particularly in medical
  malpractice cases.  See generally Crosby v. United States, 48 F. Supp. 2d 924, 926-28 (D. Alaska 1999) (providing comprehensive review of cases
  accepting and rejecting loss-of-chance doctrine); D. Fischer, Tort Recovery
  For Loss of a Chance, 36 Wake Forest L. Rev. 605, 607 (2001) (comparing
  applications in Great Britain and the United States); King, supra, 28 U.
  Mem. L. Rev. at 560 n. 8 (listing articles relating to loss-of-chance
  doctrine); Note, Loss of a Chance as a Cause of Action in Medical
  Malpractice Cases, 59 Mo. L. Rev. 969, 973 n. 29 (1994) (listing cases
  allowing recovery for loss of chance); see also Annotation, Medical
  Malpractice: Measure and Elements of Damages in Actions Based on Loss of
  Chance, 81 A.L.R.4th 485 (1990); Annotation, Medical Malpractice: "Loss of
  Chance" Causality, 54 A.L.R.4th 10 (1987).  Supporters cite a number of
  policy arguments in favor of the doctrine, most notably the harshness of
  the traditional rule in denying recovery even in cases where a doctor's
  negligence may have significantly reduced the plaintiff's chances of
  recovery; the inherent worth of a chance of recovery, no matter how small,
  as a compensable interest; and the deterrent value in penalizing a poor
  prognosis, even if it reduced the plaintiff's chances of recovery by less
  than fifty percent.  See, e.g., Crosby, 48 F. Supp. 2d  at 928; Wendland v.
  Sparks, 574 N.W.2d 327, 330 (Iowa 1998); Delaney v. Cade, 873 P.2d 175,
  180-83 (Kan. 1994); Lord v. Lovett, 770 A.2d 1103, 1106 (N.H. 2001);
  Jorgenson v. Vener, 616 N.W.2d 366, 369 (S.D. 2000); Note, supra, 59 Mo. L.
  Rev. at 984-85.
   
       ¶  9.  These cases and commentators notwithstanding, the traditional
  causation standard in medical malpractice - as in tort law generally -
  "still commands substantial support."  King, supra, 28 U. Mem. L. Rev. at
  505.  Indeed, a significant number of jurisdictions have expressly rejected
  invitations to adopt the loss-of-chance doctrine to allow recovery where -
  as here - the defendant's negligence was not shown to have been the likely
  cause of injury.  See, e.g., Crosby, 48 F. Supp. 2d  at 930-32 (applying
  Alaska law); Williams v. Spring Hill Mem'l Hosp., 646 So. 2d 1373, 1374-75
  (Ala. 1994); Grant v. Am. Nat'l Red Cross, 745 A.2d 316, 322-23 (D.C. Ct.
  App. 2000); Gooding v. Univ. Hosp. Bldg., 445 So. 2d 1015, 1020-21 (Fla.
  1984); Manning v. Twin Falls Clinic & Hosp., Inc, 830 P.2d 1185, 1189-90
  (Idaho 1992); Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 211 (Md.
  1990); Fabio v. Bellomo, 504 N.W.2d 758, 762-63 (Minn. 1993); Jones v.
  Owings, 456 S.E.2d 371, 374 (S.C. 1995); Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993); Kramer v. Lewisville Mem's Hosp., 858 S.W.2d 397,
  407 (Tex. 1993).  Opposition to the loss-of-chance doctrine is generally
  based on several policy arguments, including the anomaly and unfairness of
  applying a lower causation standard to health care providers than other
  professionals; the risk of increasing the number of successful claims and
  thereby elevating the price of malpractice insurance and health care costs
  in general, as doctors are forced to practice "defensive" medicine; and the
  illusion of deterrence where it cannot be shown that the defendant in fact
  caused the injury.  See, e.g,, Crosby, 48 F.Supp. 2d at 928-29; Gooding,
  445 So. 2d at 1019-20; Fennell, 580 A.2d  at 215; Kilpatrick, 868 S.W.2d  at
  603; Kramer, 858 S.W.2d  at 406.  
   
       ¶  10.  Although we have not had occasion to address the issue, a
  federal district court applying Vermont law has predicted that this Court
  would adopt the doctrine in a case where the defendant's negligent failure
  to diagnose reduced the plaintiff's chances of recovery. See Short v.
  United States, 908 F. Supp. 227, 237 (D. Vt. 1995). The federal court's
  analysis was brief, however, and relied on four decisions in which the
  loss-of-chance doctrine was not at issue.  In Lockwood v. Lord, 163 Vt.
  210, 218, 657 A.2d 555, 560 (1994), the defendant claimed that the trial
  court had improperly instructed on "increased risk of harm" as a separate
  cause of action.  We held that the court had simply used the language as
  "an awkward way of differentiating multiple proximate causes." Id.   Thus,
  the "loss of chance" doctrine was not raised or addressed; indeed, the
  evidence adduced by the plaintiff there was more than ample to satisfy the
  traditional proximate cause standard.  See id. at 216, 657 A.2d  at 559. 
  The other cases cited in Short, Smyth v. Twin State Improvement Corp., 116
  Vt. 569, 570-71, 80 A.2d 664, 665 (1951); Sabia v. State, 164 Vt. 293,
  302-303, 669 A.2d 1187, 1194 (1995), and Derosia v. Liberty Mut. Ins. Co.,
  155 Vt. 178, 182-83, 583 A.2d 881, 883 (1990), all relied in part on
  principles consistent with the Restatement (Second) of Torts § 323 (1965 ),
  which refers to the duty of care of one whose negligence increases the risk
  of harm.  These decisions did not, however, even remotely consider the
  loss-of-chance doctrine as an alternative test of proximate cause.        

       ¶  11.  The requirements for establishing medical malpractice in
  Vermont are set forth in 12 V.S.A. § 1908, which provides that the
  plaintiff shall have the burden of proving: (1) "[t]he degree of knowledge
  or skill possessed or the degree of care ordinarily exercised by" a prudent
  health care professional in a similar practice under similar circumstances;
  (2) that the defendant "lacked this degree of knowledge or skill or failed
  to exercise this degree of care;" and (3) "[t]hat as a proximate result of
  this lack of knowledge or skill or the failure to exercise this degree of
  care the plaintiff suffered injuries that would not otherwise have been
  occurred."  We have observed that, apart from substituting a national for a
  community standard of care, the statute essentially codifies "the common
  law elements of a medical malpractice action."  Senesac v. Assocs. in
  Obstetrics & Gynecology, 141 Vt. 310, 313 n.2, 449 A.2d 900, 902 n.2
  (1982).  Those elements have traditionally included a requirement that the
  plaintiff adduce evidence of a "reasonable probability or reasonable degree
  of medical certainty" that the defendant's conduct caused the injury. 
  Greene v. Bell, 171 Vt. 280, 285, 762 A.2d 865, 870 (2000) (citing Everett
  v. Town of Bristol, 164 Vt. 638, 639, 674 A.2d 1275, 1277 (1996) (mem.));
  see also Wheeler v. Cent. Vt. Med. Ctr., Inc., 155 Vt. 85, 94, 582 A.2d 165, 170 (1989) (preponderance-of-evidence standard governs medical
  malpractice actions as it does "most issues in civil litigation"); State v.
  Bishop, 128 Vt. 221, 232, 260 A.2d 393, 400 (1969) ( "reasonable
  probability is the standard,  rather than conjecture or mere possibility")
  (Holden, C.J., concurring);  Howley v. Kantor, 105 Vt. 128, 133, 163 A. 628, 631 (1933) (competent medical testimony required to establish
  causation to "a reasonable certainty or a reasonable probability"). 
   
       ¶  12.  The loss-of-chance theory of recovery is thus fundamentally
  at odds with the settled  common-law standard, codified in 12 V.S.A. §
  1908(3), for establishing a causal link between the plaintiff's injury and
  the defendant's tortious conduct.  Where - as in Vermont - the plaintiff
  must prove that as a result of the defendant's conduct the injuries "would
  not otherwise have been incurred,"  12 V.S.A. § 1908(3), an act or omission
  of the defendant cannot be considered a cause of the plaintiff's injury if
  the injury would probably have occurred without it. This was precisely the
  state of the record evidence here.  Accordingly, the summary judgment in
  favor of defendant was sound under the law.    
   
       ¶  13.  Plaintiff urges us nevertheless to depart from the strict
  statutory requirements, noting that they were codified in 1976, well before
  "loss of chance" became recognized as a viable theory of recovery.  See,
  e.g., In re B.L.V.B., 160 Vt. 368, 372-75, 628 A.2d 1271, 1273-76 (1993)
  (construing statute to allow adoption by mother's same-sex partner to
  conform with changing social mores).  We decline to do so. Although some of
  the arguments in favor of the loss-of-chance doctrine are appealing, we are
  mindful that it represents a significant departure from the traditional
  meaning of causation in tort law.  Implicated in such a departure are
  fundamental questions about its potential impact on not only the cost, but
  the very practice of medicine in Vermont; about its effect on causation
  standards applicable to other professions and the principles - if any -
  which might justify its application to medicine but not other fields such
  as law, architecture, or accounting; and ultimately about the overall
  societal costs which may result from awarding damages to an entirely new
  class of plaintiffs who formerly had no claim under the common law in this
  State.  See, e.g., Crosby, 48 F. Supp. 2d  at 932 (observing that adoption of
  loss of chance may be "particularly ill-suited" in small, rural states
  where physicians "cannot make all potentially beneficial tests and
  procedures available at anything approaching a reasonable cost"); Fennell,
  580 A.2d  at 215 (noting potential impacts of loss-of-chance doctrine on
  medical and insurance costs); Note, supra, 59 Mo. L. Rev. at 992-93 (noting
  difficulty of guessing impact of loss-of-chance doctrine on medical costs,
  as well as likelihood of efforts to extend doctrine to other areas of
  negligence, including legal malpractice); Fischer, supra, 59 Wake Forest L.
  Rev. at 606 (noting potential for "exceedingly broad application" of
  loss-of-chance doctrine).   


       ¶  14.  In short, we are persuaded that the decision to expand the
  definition of causation and thus the potential liability of the medical
  profession in Vermont "involves significant and far-reaching policy
  concerns" more properly left to the Legislature, where hearings may be
  held, data collected, and competing interests heard before a wise decision
  is reached. Crosby, 48 F. Supp. 2d  at 931; see also Fennell, 580 A.2d  at 214
  (recognizing that broad policy implications underlie adoption of loss of
  chance, and thus "[w]e are not convinced that such a change should be
  initiated by this Court"); Titchenal v. Dexter, 166 Vt. 373, 385, 693 A.2d 682, 689 (1997) ("complex social and practical ramifications" of
  recognizing right of nonparents to seek custody or visitation renders "the
  Legislature . . .  better equipped to deal with the problem"). 
  Accordingly, we hold that the trial court correctly rejected plaintiff's
  claim for recovery under the loss-of-chance doctrine, and properly entered
  judgment for defendant. 

       Affirmed.

                               
                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice (Ret.), Specially Assigned


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Plaintiff also sued Dr. Phillips and two other physicians for
  malpractice, but voluntarily dismissed the claims.