Fourth Circuit Sets Forth the Requirements for the ‘Loss of Chance’ Provision of West Virginia’s Medical Professional Liability Act

The United States Court of Appeals for the Fourth Circuit recently interpreted the “loss of chance” provision of West Virginia’s Medical Professional Liability Act (the MPLA). In Graham v. Dhar, the Court ruled that a medical-malpractice plaintiff proceeding under the loss-of-chance theory must establish that, if the standard of care had been followed, the patient would have had a greater than 25% chance of survival or improved recovery. In addition, a plaintiff must prove that the care “deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient.” W.Va. Code § 55-7B-3(b).

In March of 2016, Edna McNeely was admitted to a regional hospital (the Hospital) to undergo a diagnostic cardiac catheterization. Following the procedure, she developed a retroperitoneal bleed that required a higher level of care not available at the Hospital. The Hospital decided to transfer McNeely at 9:35 p.m., but she did not arrive at the second hospital until 12:53 a.m. and subsequently died.

The administratrix of McNeely’s estate sued the Hospital, alleging it breached its duty of care by not timely transferring McNeely to a hospital that was equipped to perform cardiothoracic surgery. Plaintiff’s expert opined that the standard of care was a transfer time of one hour and that McNeely’s chance of survival—about 50% around the time the Hospital decided she needed to be transferred—decreased approximately 10% every hour.

The Hospital moved for summary judgment, arguing that Plaintiff failed to establish that the alleged breach of the standard of care was a proximate cause of McNeely’s death as required by the MPLA. Plaintiff argued that she had complied with the loss-of-chance provision of the MPLA because, had McNeely been transferred in accordance with the standard of care, McNeely would have had approximately a 40% chance of survival. The district court granted summary judgment in favor of the Hospital, interpreting the loss-of-chance provision as requiring a plaintiff to prove that the defendant’s negligence caused a greater than 25% “change in outcome” between the patient’s chance of survival had the standard of care been followed and their chance of survival due to the medical provider’s negligence. The district court reasoned that “the difference between the chance of survival at the time that Mrs. McNeely would have arrived had no negligence occurred (39.17%) versus the chance of survival at the time that she actually arrived (16.17%)” was 23 percentage points and thus “below the 25% threshold required by law to state a claim under the § 55-7B-3(b) ‘loss of chance’ theory.”

On appeal, the Court ruled that the district court erred in interpreting the MPLA’s loss-of-chance provision by merging the “substantial factor” element of the MPLA with the “greater than 25 percent chance” element. The Court concluded that the loss-of-chance provision requires a plaintiff to make two distinct evidentiary showings: (1) that the defendant’s failure to follow the standard of care “deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury” and (2) that following the standard of care “would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.” W.Va. Code § 55-7B-3(b). The Court reasoned that “[t]his additional requirement [of proving that the defendant’s negligence was a substantial factor in bringing about the ultimate injury] forecloses liability for patients who were unlikely to survive or recover even if the defendant had done everything right.”

Finding no statutory support for the proposition that a plaintiff must prove that the malpractice caused a greater than 25% change in outcome, the Court vacated the district court’s decision and remanded for further proceedings. This decision still leaves the question as to what constitutes a “substantial factor” in bringing about the ultimate injury.

Please contact one of the authors below or a member of the Professional Liability Team with any questions.