## Facts

- Leslie Herskovits sought care at Group Health Hospital in 1974 for chest pain and persistent coughing; chest X-rays showed a left-lung infiltrate with rales and coughing.
- The estate alleged Group Health treated him largely with cough medicine and performed only occasional chest X-rays, without adequate investigation of ongoing symptoms.
- In early 1975, Herskovits obtained a second opinion from Dr. Jonathan Ostrow, who diagnosed advanced lung cancer within weeks.
- Herskovits underwent removal of a lung and died approximately 20 months later.
- Expert testimony indicated that timely diagnosis would have given Herskovits about a 39% chance of five-year survival, but the delay reduced that chance to about 25%, a 14-percentage-point reduction.
- It was undisputed that Herskovits’s chance of survival was below 50% at all relevant times.

## Issues

1. Whether a medical malpractice plaintiff may establish proximate cause when negligence allegedly reduced the patient’s statistical chance of survival, even though the patient’s chance of survival was always less than 50%.
2. Whether evidence of an increased risk of harm and a quantified reduction in survival probability is sufficient to defeat summary judgment and submit causation to the jury.
3. Whether the lost chance of survival may constitute a cognizable injury supporting damages in a survivorship-based professional negligence action.

## Decision

- The Washington Supreme Court (plurality) reversed the summary judgment for Group Health and remanded for trial.
- The court held that evidence the defendant’s negligence caused a 14% reduction in the decedent’s chance of survival was sufficient to create a jury question on proximate cause.
- The court rejected a rule requiring the estate to prove that, absent negligence, the decedent probably would have survived (i.e., a greater-than-50% survival likelihood).
- The court relied on Restatement (Second) of Torts § 323 concepts, treating increased risk of harm as evidence from which a factfinder may conclude the negligence was a substantial factor in the ultimate harm.
- The court indicated that recognizing loss of chance does not require full wrongful-death recovery in every case; damages may be adjusted to reflect the harm proven.

## Legal Principles

- A defendant’s negligent failure to diagnose or treat may be actionable when it increases the risk of harm and the increased risk is a substantial factor in producing the harm.
- In medical malpractice, a statistically significant reduction in a patient’s chance of survival can constitute legally cognizable harm and can support submitting proximate cause to the jury.
- A plaintiff need not prove that proper care more likely than not would have prevented death when competent evidence shows negligence materially reduced the chance of survival.
- When liability is based on loss of chance, damages need not automatically equal full death damages and may be tailored to the injury attributable to the reduced chance and resulting premature death.

## Conclusion

The court permitted a malpractice claim to proceed where negligent delay in diagnosing lung cancer allegedly reduced the patient’s chance of survival from 39% to 25%, holding that this loss of chance created sufficient evidence of proximate cause for a jury despite the patient’s survival likelihood never exceeding 50%.


Herskovits v. Grp. Health Coop. of Puget Sound, 99 Wash. 2d 609, 664 P.2d 474 (Wash. 1983)