Kelly on Malpractice

In Valadez v. Newstart, LLC, et al., 2008 WL 4831306, the loss of chance doctrine was refused entrance to our courts again. No case of causation in medical malpractice cases will survive unless there is a probability (51%) of a better outcome. You need to understand the facts of Valadez so you will not meet the same fate suffered by the plaintiff.

In early 2003, the National Institute of Child Health and Human Development commenced a study to compare two approaches to treating babies with spina bifida, a condition where a baby’s spine remains exposed in the mother’s uterus. The study, known as the Management of Myelomengocele Study (MOMS), was limited to three clinical centers, including Vanderbilt University. Persons interested in participating in the study were sent an information packet. After eligibility was confirmed, participants were assigned to one of the three clinical centers, where a final screening was performed. Upon enrollment in the study, women were assigned to one of two groups: the intrauterine surgical group (prenatal surgery group), in which surgery was performed on the fetus’s spine while in the uterus, or the standard care group (postnatal surgery group), in which surgery was performed after birth, typically within 48 hours. Assignment to either group was randomly made by a central computer system” and neither the MOMS Center staff nor the woman was able to choose which group she was assigned to. Thus, each participant “had a 50-50 of either being in the intrauterine surgery study group or in the postnatal surgery group.”

Plaintiff Valadez was a patient of Drs. Pean and Gunn-Hill for prenatal care. Plaintiff, at approximately twenty-one weeks pregnant, underwent an ultrasound examination administered by the Flinn Clinic. Plaintiff alleges that the results of the examination, which showed her unborn child was afflicted with spina bifida, were promptly relayed to the Defendants. However, the Defendants failed to notify Plaintiff of the results until it was too late.

Valadez filed a medical malpractice action against the Defendants claiming that they were notified by the Flinn Clinic of the results of the ultrasound, but failed to timely notify her. This failure prevented her from qualifying for the MOMS study, whereby she could have potentially received the intrauterine surgery. Women must qualify for the study by the twenty-fifth week of pregnancy. Defendants filed motions for summary judgment claiming that Plaintiff would not be able to establish her claims to a reasonable degree of medical certainty in that there was no more than a 50% chance that Valadez would have been included in the fetal surgery side of a randomized study. The trial court granted summary judgment, holding that “this is a lost opportunity case within the meaning of Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn.1993)” and thus the “case must be dismissed.”
The Plaintiff appealed. The sole issue on appeal was whether Tennessee should adopt a loss of chance theory of recovery. The Court of Appeals declined. Once the Tennessee Supreme Court has addressed an issue, its decision regarding that issue is binding on the lower courts. Accordingly, because Plaintiff could not show a greater than 50% chance of receiving the intrauterine surgery even absent Defendants’ negligence, the Court of Appeals affirmed summary judgment.