## Facts

- William T. Cummings sought treatment in December 1991 for heartburn-like symptoms from his family physician, Dr. Robert W. Kohne.
- Dr. Kohne ordered imaging of the esophagus, stomach, and small bowel; radiologist Dr. Jeffrey S. Cahoon interpreted the films.
- Dr. Cahoon diagnosed hiatal hernia and reflux esophagitis and noted mucosal irregularity in the esophagus; Cummings was treated for reflux rather than as a potential malignancy.
- Cummings was advised to lose weight and modify diet; he later lost significant weight and returned in July 1992, and further care was arranged through a Veterans Administration hospital.
- Before receiving VA treatment, Cummings presented to an emergency room with a perforated, hemorrhaging esophagus and was diagnosed with advanced esophageal cancer with metastases.
- Surgery and chemotherapy were ineffective; Cummings died in August 1993.
- A medical review panel found both physicians deviated from the standard of care but concluded their conduct was not a factor in the resultant damages.
- The widow sued for damages including medical expenses, lost income, wrongful death, loss of consortium, and loss of a substantial chance of survival.
- The jury was instructed using a “substantial factor” causation standard and returned verdicts for the plaintiff with separate awards against each doctor.
- The intermediate appellate court reversed and ordered a new trial; the state supreme court accepted review.

## Issues

1. In malpractice cases involving an already life-threatening disease, what causation framework governs when negligence is alleged to have reduced the patient’s chance of survival?
2. Whether defendants may be held liable for the full measure of the ultimate injury (including death) or only for the portion attributable to the increased risk caused by negligence.
3. Whether a “substantial factor” jury instruction improperly permits full wrongful-death recovery in a loss-of-chance case.

## Decision

- The court recognized loss-of-chance liability in Indiana medical malpractice consistent with prior precedent allowing recovery where negligence increased the risk of harm and the harm occurred.
- The court held that damages in loss-of-chance cases must be proportional to the increased risk attributable to negligence, not the full value of the ultimate injury.
- The court rejected the use of a traditional “substantial factor” causation instruction for these claims because it risks imposing liability for the patient’s underlying disease.
- The court ordered a new trial with instructions requiring proportional allocation of damages tied to the lost chance of survival.

## Legal Principles

- A plaintiff may recover for medical negligence that increases the risk of harm and results in injury, even when the plaintiff cannot prove by a preponderance that proper care would have avoided the ultimate outcome.
- In loss-of-chance malpractice claims, the compensable injury is the loss of a chance of a better outcome, not the disease itself.
- Damages must be measured in proportion to the chance lost: the factfinder compares the probability of survival (or better outcome) with proper care to the probability under negligent care, and awards the corresponding fraction of total damages.
- “Substantial factor” causation instructions are improper in this setting when they allow the jury to treat incremental risk increase as equivalent to causing death and thereby award full wrongful-death damages.

## Conclusion

The court required that loss-of-chance medical malpractice claims be tried and valued as probabilistic harms: liability exists for negligently reducing a patient’s chance of survival, but recovery must be limited to the proportional value of the chance lost rather than the full damages associated with death.


Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000)