WA Legal Roundup - WA State Supreme Court: Cause of Action for Loss of Chance of Better Outcome
Mohr v. Grantham
In Herskovits, the supreme court decided that there was a cause of action for a loss of chance of survival. But what if someone doesn't die, but instead lost the chance of a better outcome? That question is now answered. Mohr had a stroke, a bad one. Had Mohr had better treatment, the outcome would have been different:
The testimony included expert opinions that the treatment Mrs. Mohr received violated standards of care and that, had Mrs. Mohr received nonnegligent treatment at various points between August 31 and September 1, 2004, she would have had a 50 to 60 percent chance of a better outcome. The better outcome would have been no disability or, at least, significantly less disability.
Now, note, the court didn't need to reach that issue. Here, the chance was 50-60%, which makes it more probable than not that the failure to properly treat led to increased or total injury. They didn't need to touch Herskovits as the standard for a normal tort claim was right there.
The example I use is this: The expert says, well, there was a 60% chance if the surgery was done by someone competent, she would have had the same result. But a 40% chance she would have had a better outcome. The surgery as done gave her a 0% chance of a better outcome. Under the old standard, this did not meet more probable than not, and thus a directed verdict would have been appropriate. Now, there's a cause of action.