WPI 105.09 Loss of Chance

Use this instruction in cases when there is expert testimony establishing that plaintiff's or decedent's chance of a better outcome or of survival was less than or equal to fifty percent absent any alleged negligence, and also establishing the percentage or range of percentage reduction in the chance of better recovery or survival.

Use this instruction with WPI 105.01 (Negligence—General Health Care Provider), WPI 105.02 (Negligence—Health Care Provider—Specialist), or WPI 105.02.01 (Hospital Responsibility—Agency).

Use WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) with this instruction.

Use either WPI 105.20 (Special Verdict Form—Loss of Chance of [Survival] [Better Outcome]) or WPI 105.21 (Special Verdict Form—Traditional Injury or Loss of Chance of [Survival] [Better Outcome]).

Use this instruction when there is only one defendant and there is no issue of contributory negligence or any other affirmative defense. If there are multiple defendants, cross-claims, or a third-party complaint, the instruction and verdict forms should be modified accordingly.

This instruction is new for this edition. This instruction is adapted from Estate of Dormaier v. Columbia Basin Anesthesia, P.L.L.C., 177 Wn.App. 828, 841, 313 P.3d 431 (2013).

The loss of chance instruction applies in medical malpractice cases when the plaintiff's chance of survival or of a better outcome was less than or equal to fifty percent absent any alleged negligence. Herskovits v. Group Health, 99 Wn.2d 609, 634, 664 P.2d 474 (1983) (Pearson, J., concurring); accord Mohr v. Grantham, 172 Wn.2d 844, 857, 262 P.3d 490 (2011) (adopting Justice Pearson's plurality opinion in Herskovits). A greater than fifty percent reduction in the plaintiff's chance of recovery or survival falls under traditional all-or-nothing tort principles. Estate of Dormaier v. Columbia Basis Anesthesia, 177 Wn.App. at 849. Accordingly, a plaintiff cannot argue loss of chance where the defendant's alleged negligence reduced the plaintiff's chance of survival or recovery by greater than fifty percent. Id. at 851. The loss of chance instruction applies not only to death cases but also to cases involving “serious injury short of death.” Mohr v. Grantham, 172 Wn.2d at 857.

In loss of chance cases, the loss or reduction of the chance of survival or of a better outcome is the injury. See Herskovits v. Group Health, 99 Wn.2d at 634 (Pearson, J., concurring); Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011).

If loss of chance is proven, the plaintiff recovers a proportion of what would be compensable under the ultimate harm of death or disability. Mohr v. Grantham, 172 Wn.2d at 858. By way of example, if the loss is a forty percent chance of survival, the plaintiff recovers forty percent of what would be compensable under traditional tort recovery. Mohr v. Grantham, 172 Wn.2d at 858.

Medical expert testimony is required to prove loss of chance and the percentage or range of percentage reduction in the chance of survival or better recovery. Christian v. Tohmeh, 191 Wn.App. 709, 731, 366 P.3d 16 (2015), review denied 185 Wn.2d 1035 (2016); Rash v. Providence Health & Services, 183 Wn.App. 612, 636, 334 P.3d 1154 (2014), review denied, 182 Wn.2d 1028 (2015). As the court stated in Mohr v. Grantham, 172 Wn.2d at 857–58:

Generally, the proper causation test in medical negligence actions for a loss of chance is the traditional “but for” test and not the substantial factor test. Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 634, 389 P.3d 498 (2017); Rash v. Providence Health & Services, 183 Wn.App. at 635–36.