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October 1, 2020
The phrase “pre-existing condition” is a term of art that has been cropping up more and more frequently in recent news cycles. In the context of medical malpractice, a “pre-existing condition” is an illness or injury that a person sustains before the negligent medical treatment. There is a common misconception that a claim for medical malpractice cannot be successful if the patient who received the negligent medical treatment also suffered from one or more pre-existing conditions.
While pre-existing conditions certainly play a part in evaluating malpractice claims, the fact that an individual may suffer from such a condition does not automatically bar recovery in a medical malpractice lawsuit. In fact, it is not at all uncommon for a plaintiff in a medical malpractice case to have some underlying condition that has been exacerbated by a health care provider’s negligent medical treatment. Indeed, the plaintiff in such a case is often under the care of the defendant health care provider because she is suffering from an underlying illness or injury.
In most jurisdictions, including Connecticut, a defendant health care provider is responsible for all of the injuries caused by his negligence, even if the patient was more susceptible to those injuries because of a pre-existing condition. The concept that a defendant must “take the plaintiff how he finds him” is often referred to as “the eggshell plaintiff doctrine.” Under the eggshell plaintiff doctrine, the wrongdoer is liable for all of the damages that he legally caused, even if the consequences are more serious than they would have been had the injured person been in perfect health. See Rockhill v. Danbury Hospital, 176 Conn.App. 39, 56 (2017). In these cases, a plaintiff may claim that his pre-existing condition was exacerbated and/or aggravated as a result of the defendant’s negligent treatment.
Some scholars argue that the eggshell plaintiff doctrine is fundamentally unfair. Why should a health care provider be responsible for the exacerbation of a patient’s pre-existing condition when the health care provider’s mistake would not have caused such an injury in a perfectly healthy patient?
The public policies underlying tort law provide an answer. Tort law – the law that holds wrongdoers responsible for their conduct – serves two primary purposes: (1) to compensate victims for their injuries; and (2) to deter wrongdoers from acting carelessly at the expense of others. See Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79 (1998). Holding a defendant health care provider liable for all of the injuries caused by his negligence ensures that those purposes are met.
That being said, the scope of damages for which a defendant is liable is not infinite. A health care provider is only liable for damages that are proximately caused by his negligence. As with any other element of damages, a plaintiff must be able to prove that the aggravation or exacerbation of his pre-existing condition was, in fact, caused by the defendant’s negligence.
This can be a particularly difficult in situations where a patient suffers from a pre-existing condition with an inherently high mortality rate. Take, for example, a patient who was recently diagnosed with terminal cancer. Two years before her diagnosis, the patient happened to undergo an MRI, which showed a cancerous tumor. The patient’s physician either misread the MRI or failed to notify the patient of the results. As a result, her cancer went untreated for two years and the patient ultimately passed away. Can the physician be held liable for the patient’s death even if she was going to die anyway?
This type of claim is known as “loss of chance of survival.” A loss of chance of survival case typically arises when a patient, who is already suffering from a pre-existing condition that places the patient at risk of death, alleges that the negligence of a defendant health care provider decreased the patient’s chance to survive.
The viability of a loss of chance claim depends on the law of the applicable state. In Connecticut, a plaintiff can recover for loss of chance of survival if she can prove that the victim of the alleged medical negligence more likely than not would have survived had the medical treatment been appropriate. In other words, the plaintiff must prove that, prior to the defendant’s alleged negligence, the victim had a chance of survival of at least 51%. See Peterson v. Ocean Radiology Associates, P.C., 109 Conn.App. 275 (2008). In other states, the plaintiff can recover for the percentage difference in the victim’s chance of survival regardless of whether she had a 51% chance of survival prior to the defendant’s negligence. A minority of states do not recognize claims for loss of chance of survival no matter the circumstances.
Just as the rules in every state are different, every case is different. Do not assume that a pre-existing condition precludes you from seeking compensation for your injuries or those of a loved one. If you are considering pursuing a medical malpractice lawsuit, it is important to consult an experienced personal injury attorney.
Sarah A. Ricciardi
Silver Golub & Teitell LLP