The Impact of Gooding on Actions for Malpractice in the Treatment of Malignant Disease
The holding in Gooding v.University Hospital Building, Inc., 445 So. 2d1015
(Fla. 1984), has profoundly influenced, and continues to influence, malpractice suits involving the treatment of malignant disease in Florida. This article analyzes Gooding and evaluates its impact.
On October 4, 1976, Mr. Gooding developed abdominal pain at home and fainted. His wife contacted his gastroenterologist, Dr. Borland, and informed him of what had happened. Mr. Gooding was then transported to the emergency room of the Memorial Hospital in Jacksonville. The emergency room staff did not take a history or examine Mr. Gooding. Their belief was that Dr. Borland, who was in the hospital, would be coming to the emergency room shortly. However, Dr. Borland did not respond to repeated paging. In the interim, Mr. Gooding complained of increasing abdominal pain and shortness of breath. Dr. Borland arrived in the emergency room as Mr. Gooding died. Mr. Gooding had been in the hospital some 45 minutes. Death was due to a ruptured aortic aneurysm.
Mrs. Gooding brought suit for wrongful death against the hospital, alleging negligence by the emergency room staff for their failure to take any action during her husband’s stay in the hospital. The trial court instructed the jury that they could find for Gooding if the hospital had destroyed his chance of survival. The jury awarded $300,000 in compensatory damages to Gooding’s estate. On appeal the First District Court of Appeal reversed, reasoning that the trial court should have directed a verdict in favor of the hospital because Gooding’s chances of survival would have been no more than even with proper treatment.1 The Supreme Court of Florida affirmed the district court’s ruling.
Supreme Court’s Holding
The Supreme Court reiterated the district court’s belief that Mr. Gooding did not have any more than an even chance of survival. The Supreme Court rejected a mere decrease in any chance of survival as a basis for awarding damages. Instead, it cited Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 253-254, 272 N.E.2d 97, 104 (1971), and established two requirements for awarding damages in a medical malpractice action. First, there must be evidence of a greater-than-even chance of survival in the absence of negligence. Second, if this requirement is met, proximate causation demands the additional showing that it is more likely than not that the decreased survival has resulted from the defendant’s negligence. It must be established that the negligence probably reduced survival. A mere possibility that it may have reduced survival will not suffice.
Survival Versus Cure
“Cure” signifies eradication of the disease process. “Survival” denotes continued existence in the presence of disease, which may or may not be clinically detectable. The medical situation in Gooding is sharply delimited. The issue is not one of survival, even though it is couched in this language. The issue is one of cure. For Mr. Gooding to have survived, the aneurysm would have to have been eradicated. It is not possible to exist with a ruptured aortic aneurysm. The aneurysm is either successfully resected, and the patient cured, or the patient will face imminent death.
The facts of Gooding, therefore, refer to cure. The question is whether the holding, as applied to malignant disease, is to be interpreted in terms of the language of Gooding (survival), or in terms of the facts of Gooding (cure).
Survival Versus Cure
with Malignant Disease
In Gooding the issue was that of cure. In the case of malignant disease, however, three different situations may be encountered. In the first, cure is probable at the outset, but, as a result of negligence, the chance of eradicating the disease has been lost. The second and third categories are those in which cure is improbable, but varying periods of survival exist. In the second group the patient has died prematurely as a result of negligence (wrongful death). In the third group the patient is living, but his or her life expectancy, already shortened by the disease, has been reduced even further through negligence.
Chance of Cure Lost Through Negligence
In Mezrah v. Bevis, 593 So. 2d 1214 (Fla. 2d DCA1992 ), the physician failed to diagnose breast cancer. Expert testimony established that had it not been for the defendant’s negligence the cancer would probably have been cured. The court cited Gooding in holding for the plaintiff.
Of interest in Mezrah is the court’s use of the word “cure,” a clear reference to the facts of Gooding, rather than the use of the expression “survival” as in Gooding itself. The case illustrates the application of Gooding whe initial cure is probable and undisputed. This probability satisfies the first requirement of Gooding, and, if the loss of this probability through negligence is established, the plaintiff may recover damages because the causation requirement is satisfied as well. Whether, however, Gooding will invariably be applied in these situations is not certain.
In Swain v. Curry, 595 So. 2d 168 (Fla 5th DCA 1992),
a 43-year-old patient presented with a breast lump in May 1987. Treatment was delayed until June 1988, when the cancer was removed. The patient instituted suit, claiming, inter alia, a significant reduction in life expectancy as a result of negligence. The trial court rendered summary judgment for the physician, declaring that the patient had failed to establish a cause of action. The appellate court reversed, and remanded the case for a jury determination in view of conflicting medical testimony. The opinion is of particular interest in that it tacitly ignored Gooding. One of the medical experts had testified that, with proper treatment, the patient could have expected a 90 to 95 percent chance of “survival.”
Evidently, in this context, “survival” meant “cure.” There was testimony that as a consequence of delay the opportunity had been lost, and the patient now faced a 65 percent likelihood of recurrence. On the basis of this evidence, both requirements of Gooding were clearly satisfied. However, even though it might properly have done so, the court did not cite Gooding in this connection. It referred, instead, to Florida cases which had established the principle of recovery for “any aggravation of an existing disease,” citing Taylor Imported Motors, Inc. v. Smiley, 143 So. 2d 66 (Fla. 2d DCA 1962), and other examples. “Aggravation of an existing disease” represents the very antithesis of Gooding, which, in its demand for eradication of the disease, implicitly denies recovery when the disease persists. Swain, therefore, is somewhat enigmatic when we seek to predict the application of Gooding in cases when a chance of cure has been compromised through negligence.
Application of Gooding in Actions for Wrongful Death
A simple hypothetical, not divorced from reality, will be employed. Assume that the patient ( P ) is diagnosed as having a malignant tumor. Cure is unlikely. Nonetheless, even though recurrence and a fatal outcome are probable, P may live for many years. The prognosis is then expressed in terms of survival at specified periods: five-year survival, 10-year survival, etc. Thus, in the case of P, the chance of surviving 10 years may be 20 percent. However, the chance of surviving five years may be 70 percent. If, as a result of negligence, P expires after one year, P might effectively have lost at least four years of life. The question would then arise as to which figure controlled: the 20 percent chance of survival at 10 years ( ultimate prognosis ) or the 70 percent chance of survival at five years ( intermediate prognosis ). If the ultimate prognosis controlled, the more likely than not test of survival would not be satisfied, and recovery would not be allowed. Under these circumstances the probability of eventual death from the tumor would be dispositive. Effectively, if cure was not probable at the outset, there would be no chance of recovery in the suit. This would be the case even though the patient might have survived for many years with treatment; and even though, as a result of negligence, the reduction in years survived might have been substantial. If, however, the intermediate prognosis controlled, the more likely than not test of survival would be satisfied, and recovery might be allowed if the second element of Gooding was met: proximate causation.
We are required, in summary, to resolve the following question in relation to wrongful death: “Does the probability of ultimate death from the malignancy preclude recovery for wrongful death where premature death has resulted from negligence?” For an answer we turn to the cases.
In Williams v. Bay Hospital, Inc. , 471 So. 2d 626 (Fla. 1st DCA 1985), an X-ray of the patient’s chest in August 1980 revealed abnormalities. The patient was not informed of these changes, and consequently, she was not treated for the cancer that had produced them. In April 1981 disseminated lung cancer was found and she died in December 1981. According to experts, had a proper diagnosis been made, her life would with reasonable probability have been extended by several months. Both the trial court and the court of appeals, citing Gooding, eliminated any possibility of an action for wrongful death on the ground that, despite any treatment, she would probably not have survived.
In Tappan v. Florida Medical Center, Inc. , 488 So. 2d 630 (Fla. 4th DCA 1986), the claimant’s husband died of lung cancer. Medical testimony established that had he received proper treatment he would have lived six or eight months longer. Both the trial court and the court of appeals applied Gooding to dismiss the action for wrongful death, noting that even with proper treatment the patient would probably not have survived.
Thus far the application of Gooding would appear to involve only the ultimate prognosis. In Green v. Goldberg, 557 So. 2d 589 (Fla. 4th DCA 1989 ), however, the result was different. In this case, a medical expert contended that with proper treatment a 32-year-old patient with breast cancer would probably have survived 10 years. The appellate court interpreted this information as satisfying the requirements of Gooding and reversed a directed verdict for the defendant physician in an action for wrongful death. The case was remanded for a new trial. Thus, the fact that she ultimately succumbed to the disease ( the ultimate prognosis ) did not control. The intermediate prognosis, a probability of survival for 10 years, controlled with regard to the survival requirement of Gooding.
We turn next to the third and final group of cases.
Reduction in Life Expectancy from Negligence
In Noor v. Continental Casualty Company, 508 So. 2d 363 (Fla. 2d DCA 1987), the patient consulted a physician about a breast lump in February 1980. The physician delayed biopsy until September 1980, at which time she was found to have lymph node involvement. Both the trial court and the appellate court dismissed her claim for negligent diminution in life expectancy. The appellate court accepted medical testimony to the effect that her life expectancy had been diminished by the malignancy at the time when she initially presented herself to the physician. Her ultimate prognosis, therefore, was poor from the outset. Having established this fact, the court, citing Gooding, then dismissed as purely speculative her claim that the delay had resulted in an additional reduction in life expectancy.
If the prognosis ( Gooding’s first requirement) had been dispositive, the causation requirement would have been irrelevant. The case would have been dismissed without any further consideration on the ground that her prognosis was poor from the outset. Evidently, this first requirement was not taken into account. The decision rested upon causation ( Gooding’s second requirement). It was based upon the inability of the plaintiff to convince the court that the physician’s negligence had reduced her life expectancy even beyond that reduction due to the disease. One might even infer from the opinion that if the plaintiff had been able to do so,
her poor prognosis might not have precluded recovery.
When the opportunity to eradicate malignant disease existed but has been lost through negligence, the application of Gooding will probably allow recovery for damages. If premature death has resulted from negligence in a patient whose prognosis was poor from the outset, the outcome in a wrongful death action may depend upon the anticipated length of survival in the absence of negligence. If that survival would have been short even with proper treatment, recovery appears to be unlikely. If it might have been prolonged, recovery is possible even though, ultimately, a fatal outcome was expected. If a patient, still living but with the probability of persistent disease, claims reduction in life expectancy as a result of negligence, the impact of Gooding is less clear.
The outcome appears to turn on the second requirement of probable causation, thus implicitly discarding the first requirement of ultimate survival.
The impact of Gooding on litigation relating to negligence in the treatment of malignant disease has been analyzed above. In conclusion, the ethical aspects of Gooding will be considered.
Gooding established the proposition that in a medical emergency the patient can be abandoned with impunity if an expert estimates the patient’s chance of survival to be 50 percent instead of 51 percent. It would be redundant to expound on this view of medical ethics. Suffice it to note that in Gooding itself, the same expert who had testified in the matter of survival also testified that the inaction of the medical personnel in the emergency room breached the standard of care. This aspect of the testimony was submerged in the issue of survival, and was ignored by the court. Although the context is not quite as dramatic, the selfsame proposition has been extended by the progeny of Gooding to those victims of malignant disease whose survival is expected to be short. Having been doomed by the disease, they have been deserted by the law and can be legally deserted by the medical profession. Their claim of malpractice will not even be heard. Against them negligence has been proffered certain sanctuary. That such sanctuary has been welcomed is indubitable. That it is ethical is a different matter.
Gooding, in its quixotic crusade to protect a favored group, has devalued life when the days remaining are few. In this situation, arguably, the law, if not the medical profession, should hold that very commodity to be more, rather than less, dear. q
1 University Hospital Building, Inc., v. Gooding, 419 So. 2d 1111 (Fla. 1st D.C.A. 1982).
Dr. Cyril Toker is former professor of pathology at the University of Maryland Medical School. He is recognized for his contributions to the diagnosis and behavior of tumors. Dr. Toker obtained his law degree in 1999 and was admitted to The Florida Bar in April 2000.
This column is submitted on behalf of the Trial Lawyers Section, Robert F. Spohrer, chair, and D. Keith Wickenden, editor.