Herskovits v. Group Health Cooperative of Puget Sound
Supreme Court of Washington
664 P.2d 474 (1983)
Herskovits consulted Group Health Hospital (GHH) (defendant) about chest pain and coughing; physicians there took only a chest X-ray and treated him with cough suppressant. When his symptoms persisted, a second opinion revealed advanced lung cancer; Herskovits had surgery but died 20 months later. His estate (plaintiff) sued GHH for wrongful death, and an expert testified that timely detection would have given Herskovits a 39 percent chance of five-year survival, but GHH's failure to detect the cancer reduced that chance to 25 percent. GHH argued the estate couldn't show its negligence "probably" or "more likely than not" caused death, and the trial court granted GHH summary judgment.
Whether, in a wrongful death action, evidence that a defendant's negligence decreased a patient's statistical chance of survival is sufficient to let a jury decide the issue of proximate cause, even without proof the negligence more likely than not caused the death.