A patient’s terminal illness does not give rise to a wrongful death claim based on the argument that the person would have lived years longer had the diagnosis been correctly made and life-extending treatment begun earlier, a divided Maryland high court ruled Friday.
The Court of Appeals said family members claiming wrongful death must show the doctor’s negligence caused their loved one’s demise or deprived them of a greater than 50% chance of survival, not merely that the negligence led to a sooner-than-expected death.
The dissenting judges criticized the majority for a ruling they said essentially immunizes doctors from malpractice liability when treating terminally ill patients.
In its 5-2 decision, the court rejected the “loss of chance” doctrine under which liability can be assessed if the doctor’s negligence deprived the terminally ill patient of a better outcome, such as a longer life, but did not proximately cause death.
The court said the General Assembly could adopt the doctrine via statute but has not in the 35 years since the court first rejected loss of chance in Weimer v. Hetrick.
“The General Assembly is best equipped to identify, consider, and reconcile competing policy interests associated with the decision of whether to adopt the loss of chance doctrine,” Judge Joseph M. Getty wrote for the majority. “Therefore, any changes to the Wrongful Death Act are best suited to the legislative process in the General Assembly and not from this court in the guise of statutory construction.”
The Court of Appeals ruling denied a bid by Stephanie Wadsworth’s father, widower and two children to revive their claim she would have lived an additional two-and-a-half years if Dr. Poornima Sharma had correctly diagnosed Wadsworth’s terminal breast cancer in 2013.
A Baltimore County Circuit Court judge granted summary judgment for Sharma and her employer, University of Maryland Oncology Associates, saying the doctor’s allegedly failed diagnosis did not proximately cause Wadsworth’s death. The Court of Special Appeals agreed, saying Maryland’s wrongful death statute “must be strictly construed” to apply only when — in the law’s words — a “wrongful act caused the death of another.”
Upholding that decision, the Court of Appeals said Sharma’s alleged failure to diagnose the terminal cancer did not cause Wadsworth’s death, as a correct diagnosis would not have resulted in her survival from the disease.
The court cited depositions of physicians James Stark and Andrew Schneider that Wadsworth’s cancer was incurable.
“Here, the undisputed facts demonstrate that Ms. Wadsworth’s metastatic breast cancer caused her death,” wrote Getty, a retired judge sitting by special assignment.
“Neither party presented experts to opine that Ms. Wadsworth’s likelihood of survival, absent Dr. Sharma’s alleged negligence, exceeded 50% or that she would have survived if Dr. Sharma started treating her on the date that she produced the (allegedly mishandled) abnormal scan,” Getty added. “According to the undisputed opinions from Dr. Stark and Dr. Schneider, Ms. Wadsworth did not have a greater than 50% chance of survival, absent Dr. Sharma’s alleged negligence.”
Getty was joined by Judges Michele D. Hotten, Brynja M. Booth, Jonathan Biran and Robert N. McDonald, a retired jurist sitting by special assignment.
Judge Shirley M. Watts issued a sharp dissent, stating that many terminally ill cancer patients can survive many years if properly diagnosed and treated.
“Perhaps the majority does not intend its opinion to entirely preclude families of relatives with terminal illnesses from ever recovering in a wrongful death action,” Watts wrote. “The majority opinion sends a message to healthcare providers that there is less accountability for negligently treating individuals suffering from illnesses from which they will not recover, even as medicine advances and periods of survival become longer.”
Watts was joined by retired Judge Glenn T. Harrell Jr., sitting by special assignment.
The family’s attorney, Brian Brown, voiced disappointment for his clients and other grieving relatives who have no cause of action when a doctor’s alleged negligence caused their terminally ill loved ones to die years before they would have with proper diagnosis and treatment.
“No one disputed she was going to pass away,” Brown said of Wadsworth. “But her life was shortened.”
He urged the legislature to add loss of chance to Maryland’s wrongful death statute.
“There’s a hole in the law, a gap in the law that the General Assembly should fill,” said Brown, of Brown & Barron LLC in Baltimore.
Sharma’s appellate attorney, Derek Stikeleather, did not immediately comment Monday on the Court of Appeals decision. Stikeleather is with Goodell, DeVries, Leech & Dann LLP in Baltimore.
According to court papers, Wadsworth was diagnosed with Stage III breast cancer in 2006, for which she had surgery, radiation and chemotherapy. Follow-up scans in 2006, 2007 and 2008 showed no signs of metastatic cancer.
Five years later, an April 2013 scan revealed an abnormality that a radiologist reported as potentially cancerous lesions in Wadsworth’s clavicle, stated the family’s complaint.
Sharma received the report but neither told Wadsworth of its findings nor ordered follow-up tests, the complaint alleged.
By this time, Wadsworth had Stage IV metastatic breast cancer, according to court papers.
She displayed no signs of the disease until February 2016, when she injured her right shoulder. A bone scan revealed a malignant lesion.
Wadsworth, at that point diagnosed with Stage 4 cancer, was given the aggressive treatment she would have received had she been diagnosed in April 2013, according to court papers.
Wadsworth died June 10, 2017, at age 53.
Had she been diagnosed and treatment begun in April 2017, she would have lived an additional 30 months, until December 2019, according to the family’s medical experts.
The family filed the wrongful death lawsuit in October 2018.
The Court of Appeals issued its decision in Wadsworth v. Sharma, No. 40, September Term 2021.