In the recent decision in Wadsworth v. Sharma, 2022 WL 2763202 (Md. 2022), the Maryland Court of Appeals once again declined to adopted the loss of chance doctrine in wrongful death cases. The decision was based largely on the COA’s long standing tradition of abstaining from judicial policymaking, as the majority opinion noted that it was up to the Maryland legislature whether to adopt this rule. Unfortunately, this decision effectively means that doctors and hospitals in Maryland are immune from malpractice liability when caring for terminally ill patients.
Summary of Facts
Stephanie Wadsworth was diagnosed with Stage III breast cancer in her left breast in 2006. She underwent a mastectomy, chemo, and radiation therapy and subsequent testing over the course of the next few years indicated that her cancer had been effectively treated.
In 2013, however, Ms. Wadsworth’s oncologist, Dr. Sharma, had her undergo a new round of diagnostic testing. This time a PET scan revealed a new and potentially cancerous growth on Ms. Wadsworth’s collar bone. Dr. Sharma reviewed the PET scan but decided not to take any action because she mistakenly concluded that the lesion was not cancer.
Three years later in 2016, Ms. Wadsworth injured her shoulder and went to the hospital. Diagnostic testing revealed that growth on her collar bone was in fact breast cancer that had metastasized to her clavicle. By the time this diagnosis was made, however, it was essentially too late. Ms. Wadsworth died a little over a year later in June 2017.
Ms. Wadsworth’s survivors brought a wrongful death action against Dr. Sharma (and others) alleging that she was negligent in failing to timely diagnose the cancerous tumor on the clavicle in 2013. The wrongful death lawsuit claimed that even though Ms. Wadsworth cancer was essentially terminal, she would have lived much longer if Dr. Sharma had correctly diagnosed it in 2013.
Dr. Sharma filed a motion for summary judgment arguing that the proximate cause of Ms. Wadsworth’s death was her metastatic cancer, not the alleged delay in diagnosis. In other words, the defense argued that even if Dr. Sharma had timely diagnosed the tumor in 2013, Ms. Wadsworth would have died anyway.
The Circuit Court for Baltimore City agree with this argument and granted the summary judgment motion. The plaintiffs appealed and the Court of Special Appeals affirmed the ruling. The COA granted a cert petition and agreed to hear an appeal in the case. The appeal asked the COA to reconsider its previous rulings and adopted the “loss of chance” doctrine as part of Maryland’s wrongful death statute.
The COA held that the loss of chance doctrine is not recognized in Maryland and it expressly declined to revise prior decisions and adopt the doctrine. The COA explained that it is up to the state legislature whether to change the law of wrongful death in Maryland by recognizing the loss of chance claims.
The COA went on to restate that in a wrongful death claim in Maryland, the plaintiffs must show that the doctor’s negligence was the direct cause of death or that the decedent had a 51% chance of survival. Showing that the doctor’s negligence caused the decedent to die sooner than expected is not enough for proximate cause in a wrongful death case in Maryland.
The majority opinion starts by reviewing the history of the law of wrongful death in Maryland, beginning with the enactment of Maryland’s Wrongful Death Statute in 1852. The Court then explains that wrongful death plaintiffs in medical malpractice cases must show that the doctor’s negligence was the proximate cause of death. This burden creates a major challenge in cases where the decedent has a medical condition that cannot be cured and their condition is therefore terminal.
The Court notes that many other jurisdictions have sought to address this inequity by adopting what is known as the “loss of chance” doctrine. The loss of chance doctrine enables plaintiffs to prevail in wrongful death cases if they can simply show that the defendant’s negligence deprived the decedent of a “better outcome.” The Court makes it very clear, however, that Maryland is among those jurisdictions that have rejected the loss of chance doctrine in favor of the traditional proximate cause rules.
The opinion next walks through the two previous cases in which the COA rejected opportunities to adopt the loss of chance doctrine. The first case was Weimer v. Hetrick, 309 Md. 536 (1986), where the loss of chance doctrine was rejected in a case involving a premature infant with little chance of survival.
The second rejection of the loss of chance doctrine came in the case of Fennell v. Southern Maryland Hospital Center Inc., 320 Md. 776 (1990). In that case, the decedent died of meningitis and the evidence showed that she would only have had a 40% chance of surviving had the hospital not be negligent. Once again, the COA refused to adopt a loss of chance doctrine.
The COA ultimately asserted the same basic principle in the Wadsworth case. The COA refused to adopt a loss of chance doctrine and held that it would be up to the legislature to make that type of change to the wrongful death statute:
It is this Court’s practice to defer to the General Assembly decisions that “plainly involve major policy considerations.” Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 690 (2013) (quoting Harrison v. Montgomery Cty. Bd. of Educ., 295 Md. 442, 462 (1983)). The General Assembly is best equipped to identify, consider, and reconcile competing policy interests associated with the decision of whether to adopt the loss of chance doctrine. Therefore, any changes to the Wrongful Death Act are best suited to the legislative process in the General Assembly and not from this Court “in the guise of statutory construction.”
The COA affirmed the decision of the COSA.
Notes and Comments
This decision is hardly surprising because the Maryland Court of Appeals has a long history of avoiding any type of “judicial activism” or policy making. Unfortunately, this decision continues a rule that essentially gives doctors and hospitals full immunity when it comes to the treatment and care of patients with very serious or terminal conditions. Without the loss of chance doctrine, healthcare providers can never be held liable for malpractice in a wrongful death case when the decedent has a terminal condition such as metastatic cancer.