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Herskovitz v. Group Health Cooperative Case Brief

Summary of Herskovitz v. Group Health Cooperative, S. Ct. Washington, 1983

Relevant Facts: Df doctor and HMO failed to diagnose Pl’s cancer on his first visit to the hospital. This caused a 14 % reduction in his chances of survival. At that time Pl only had a 50% chance of survival.  Pl died later as a result of the cancer.

Legal Issue(s): Whether the doctor’s failure to diagnose the Pl’s cancer can be a causal factor and thereby negligence?

Court’s Holding: Yes

Procedure: Trial ct. summary judgment for Df.  Reverse and reinstate.

Law or Rule(s):  1) Duty, 2) Breach of Duty 3) causation, and 4) damages.  The causation element requires proof of both cause in fact and proximate cause.

Court Rationale: Df’s act or omission failed in a duty to protect against the harm from another source (cancer).  If the df’s acts or omission increased the risk of harm to the Pl, then that furnishes the jury with the ability to determine whether that risk was substantial factor in bringing about the resultant harm.  Where percentage probabilities and decreased probabilities are submitted into evidence, there is no danger of speculation on the part of the jury.  Stipulation determined that PL had only a 50% chance of survival and the doctor’s failure to diagnose reduced that by 14% is a prima facie case for negligence.

Plaintiff’s Argument: The failure to diagnose the cancer increased the chances of death and injury and decreased the chances of recovery.

Defendant’s Argument: Pl’s must show that Pl had a 51% probability of survival if the hospital had not been negligent.



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