The Maryland Court of Special Appeals found in a 2-1 decision last month that a reduction of 30 percent in the survival chances of a woman with uterine cancer as the result of medical malpractice is not actionable as a matter of Maryland law.
Marcantonio v. Moen is a case about the delay in diagnosing cancer. Plaintiff claimed that his wife died as the result of her doctors misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms. Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. So while she was statistically likely to beat cancer even with the malpractice, she died.
The Maryland Court of Special Appeals found that the “major issue to be decided is whether proof that a health care provider was responsible for a twenty to thirty percent reduction in the decedent’s chance of survival suffices to prove that the malpractice caused the death. We shall hold that it is not,” wrote Judge James P. Salmon.
The court is saying that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living because of the negligence to recover.
But what the plaintiff and the minority opinion (a very well reasoning dissent from Judge Timothy E. Meredith) argue is that the 51% math is illogical because the majority opinion is doing the calculation pretending it does not know the outcome. So if you have a 90% chance of living and the defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died because of the negligence.
Doesn’t this make sense? In the scenario I just gave, it is more likely that the person died because of the doctor’s negligence. Shouldn’t that be enough? Yet you can’t recover in Maryland in a wrongful death case when the doctor’s negligence causes the death.
The only way to make this right will be with help from the Maryland legislature because I don’t see the Maryland Court of Appeals fixing this.
You can read the opinion here or this summary of an article written by Scott Daugherty of the Capital Gazette (which contains a brief quote from me).