## Facts

- Benjamin Smith was hospitalized at E.A. Conway Memorial Hospital in August 1987 for a foot infection; a routine chest x-ray was taken during his stay.
- The radiologist reported a mediastinal mass, noted lymphoma in the differential diagnosis, and recommended a thoracic CT scan.
- Hospital staff did not inform Smith or his family of the abnormal x-ray findings and did not recommend further testing; Smith was discharged.
- Smith returned about fifteen months later (October 31, 1988) with chest symptoms; a second x-ray showed the mass had doubled in size, and Smith learned of the earlier report.
- Further testing diagnosed extensive-stage small cell lung carcinoma; despite treatment, Smith died on March 16, 1989 at age forty-five.
- Smith’s survivors sued the state health department (the hospital operator) for medical malpractice based on a “loss of a chance of survival.”
- The defendant conceded breach of the standard of care but disputed causation and damages; the trial court dismissed for failure of proof.
- The court of appeal reversed and used a percentage-reduction approach (full wrongful-death damages multiplied by percentage chance lost); the supreme court granted review on valuation of loss-of-chance damages.

## Issues

1. Whether plaintiffs proved by a preponderance of the evidence that the defendant’s negligence deprived Smith of a real chance of survival, even if his pre-negligence chance of survival was less than 50%.
2. If loss of chance was proved, what method should be used to value damages: a mechanical percentage of full wrongful-death damages or a direct valuation of the lost chance as a distinct injury.

## Decision

- The court held plaintiffs proved the defendant’s negligence more probably than not deprived Smith of a real and appreciable chance of survival.
- The court reaffirmed that a lost chance of survival is compensable even when the chance was less than 50%.
- The court rejected a rigid formula that multiplies total wrongful-death damages by a percentage chance lost.
- The court ruled that the lost chance is a distinct compensable injury and must be valued directly by the factfinder using general-damages discretion, with probability evidence as guidance rather than a mandatory multiplier.
- The case was remanded for a new assessment of damages under the proper valuation approach.

## Legal Principles

- In medical malpractice, “loss of a chance of survival” is a distinct compensable injury, separate from wrongful death.
- Causation focuses on whether malpractice more probably than not caused the loss of a chance, not whether malpractice more probably than not caused death.
- A plaintiff may recover for destruction or reduction of a real and appreciable chance of survival even if that chance was below 50%.
- Damages for loss of chance must be valued as the lost chance itself; probability estimates may inform the award but do not mechanically determine it.
- Factfinders retain broad discretion in fixing loss-of-chance damages, consistent with general damages methodology.

## Conclusion

The Louisiana Supreme Court held that malpractice that deprives a patient of a real chance of survival supports recovery for that lost chance, regardless of whether survival was more likely than not, and it required damages to be valued directly for the lost chance rather than by a rigid percentage of a full wrongful-death award.


Smith v. State Dep’t of Health & Hosps., 676 So. 2d 543 (La. 1996)