Linda J. Mohr v. Dale C. Grantham, M.D.

Linda Mohr suffered a trauma-induced stroke and is now

permanently disabled. She and her husband, Charles, claim that negligent treatment

by her health care providers diminished her chances of avoiding or greatly minimizing

her disability. In other words, they claim that negligence caused Mrs. Mohr a loss of

the chance of a better outcome. In Herskovits v. Group Health Cooperative of Puget

Sound, 99 Wn.2d 609, 611, 614, 664 P.2d 474 (1983) (Dore, J., lead opinion), this

court recognized the lost chance doctrine in a survival action when the plaintiff died

following the alleged failure of his doctor to timely diagnose his lung cancer. This

case compels consideration of whether, in the medical malpractice context, there is a

cause of action for a lost chance, even when the ultimate result is some serious harm

short of death. We hold that there is such a cause of action and, accordingly, reverse

the order of summary judgment.

Facts

In Richland, Washington, on the afternoon of August 31, 2004, Mrs. Mohr

suffered a hypoglycemic event that caused her to run her car into a utility pole at

approximately 45 m.p.h. She was taken by ambulance to the emergency room at

Kadlec Medical Center (KMC). Having visible lacerations on her face from the car

accident, Mrs. Mohr was given a neurological assessment upon arrival, at around 4:00

p.m., and a computerized tomography (CT) scan of her brain about an hour later.

These tests were overseen or authorized by Dr. Dale Grantham, who was charged with

Mrs. Mohr's care at KMC on August 31. The results were normal.

Following those neurological tests, however, Mrs. Mohr reported and was

observed to have neurological symptoms, including being wobbly on her feet and

having severe pain after being administered pain medication.1 Dr. Grantham informed

one of Mrs. Mohr's physician sons, Dr. Brandt Mohr, by phone that he would carry

out another neurological assessment before discharging her. He did not. Instead, he

prescribed a narcotic, Darvocet, and sent Mrs. Mohr home with her husband. At that

point, Mrs. Mohr could not walk herself to or from the car and had to be carried to bed

by her husband when they arrived home. The Mohrs were not given discharge

instructions that included specific information about head injuries.

Mrs. Mohr was again transported to KMC by ambulance just after 7:00 a.m. on

September 1, 2004, because her husband was concerned that she remained very

lethargic through the night. Dr. Brian Dawson was the attending emergency room

physician that morning. By around 9:30 a.m., Mrs. Mohr was diagnosed as having a

stroke. Specifically, she was first found to have an "evolving infarct . . . in the right

middle cerebral artery territory," Clerk's Papers (CP) at 119, which relates to a cause

of a stroke.2 A magnetic resonance imaging (MRI) examination, performed shortly

after 9:30 a.m., confirmed that Mrs. Mohr was in fact having a stroke.3 However, Dr.

Dawson did not provide any anticoagulant or antithrombotic treatment or therapy.

Around 11:30 a.m. Mrs. Mohr was transferred to the intermediate care unit, under the

care of Dr. Brooks Watson.

Before the transfer, Mrs. Mohr's two physician sons had arrived at KMC to be

by her side. They tried to get both Dr. Dawson and then, after her transfer, Dr.

Watson to order a CT angiogram. A CT angiogram was not done until 2:30 p.m., after

the Mohr sons had Dr. Watson repeatedly paged. Then, although the results were

available at 3:27 p.m., Dr. Watson was not located or informed until 4:50 p.m. that the

CT angiogram showed a dissected carotid artery. He still did not order anyone to

administer anticoagulant therapy, antiplatelet agents, or any other treatment. Dr.

Watson had prescribed aspirin around 2:00 p.m. but did not order its immediate

administration.

Mrs. Mohr's sons finally arranged a transfer and transport to Harborview

Medical Center. Dr. Watson signed the transfer form as a formality. Only shortly

before her transport at 6:00 p.m. on September 1, 2004, was Mrs. Mohr finally given

aspirin, though it had to be administered in suppository form because, by then, she

could no longer swallow.

Mrs. Mohr is now permanently brain damaged; a quarter to a third of her brain

tissue was destroyed. In particular, the portions of her brain that were damaged are

involved with motor control, sensation, and spatial reasoning.

Mrs. Mohr and her husband filed suit, claiming that Mrs. Mohr received

negligent treatment, far below the recognized standard of care. They argue that the

doctors' negligence substantially diminished her chance of recovery and that, with

nonnegligent care, her disability could have been lessened or altogether avoided. The

Mohrs' claim relies, at least in part, on a medical malpractice cause of action for the

loss of a chance. In support of their claim, the Mohrs presented the family's

testimony, including her two sons who are doctors, and the testimony of two other

doctors, Kyra Becker and A. Basil Harris. The testimony included expert opinions

that the treatment Mrs. Mohr received violated standards of care and that, had Mrs.

Mohr received nonnegligent treatment at various points between August 31 and

September 1, 2004, she would have had a 50 to 60 percent chance of a better outcome.

The better outcome would have been no disability or, at least, significantly less

disability.

On April 16, 2009, the Benton County Superior Court granted summary

judgment for the defendants on the basis that the Mohrs did not show "but for"

causation and the hesitancy of the court to expand Herskovits to the facts of this case.

The Mohrs appealed, and the Court of Appeals certified the case for our review.

Issues

1. In the medical malpractice context, is there a cause of action for a lost

chance of a better outcome?

2. Did the trial court properly grant summary judgment for all defendants under

CR 56(c)?

Analysis

1. Lost Chance of a Better Outcome

The medical malpractice statute requires the same elements of proof as

traditional tort elements of proof: duty, breach, injury, and proximate cause. RCW

7.70.040. Whether there is a cause of action for a lost chance of a better outcome in

the medical malpractice context is a question of law, which we review de novo.

Berger v. Sonneland, 144 Wn.2d 91, 103, 26 P.3d 257 (2001). The standard

formulation for proving proximate causation4 in tort cases requires, "first, a showing

that the breach of duty was a cause in fact of the injury, and, second, a showing that as

a matter of law liability should attach." Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460,

475-76, 656 P.2d 483 (1983). In a medical malpractice case, for example, a plaintiff

would traditionally seek to prove "cause in fact" by showing "that he or she would not

have been injured but for the health care provider's failure to use reasonable care."

Hill v. Sacred Heart Med. Ctr., 143 Wn. App. 438, 448, 177 P.3d 1152 (2008) (citing

McLaughlin v. Cooke, 112 Wn.2d 829, 837, 774 P.2d 1171 (1989)). However, as the

plurality noted in Herskovits, "[t]he word 'cause' has a notoriously elusive meaning

(as the writings on legal causation all agree)." 99 Wn.2d at 635 n.1 (Pearson, J.,

plurality opinion). For this reason, and in service of underlying tort principles, this

court and others have recognized some limited exceptions to the strict tort formula,

including recognition of lost chance claims. See, e.g., id. at 619 (Dore, J., lead

opinion), 634-35 (Pearson, J., plurality opinion).

Herskovits involved a survival action following an allegedly negligent failure to

diagnose lung cancer. Over the course of a year, Leslie Herskovits repeatedly sought

treatment for persistent chest pains and a cough, for which he was prescribed only

cough medicine. Id. at 611 (Dore, J., lead opinion). When he finally sought another

medical opinion, Herskovits was diagnosed with lung cancer within three weeks. Id.

His diagnosing physician testified that the delay in diagnosis likely diminished

Herskovits's chance of long-term survival from 39 percent to 25 percent. Id. at 612.

Less than two years after his diagnosis, then 60 years old, Herskovits died. Id. at 611.

The trial court dismissed the case on summary judgment on the basis that Herskovits's

estate, which brought suit, failed to establish a prima facie case of proximate cause: it

could not show that but for his doctor's negligence he would have survived because he

"probably would have died from lung cancer even if the diagnosis had been made

earlier." Id. Though divided by different reasoning, this court reversed the trial court,

finding that Herskovits's lost chance was actionable.

The lead opinion, signed by two justices, and the concurring opinion, which

garnered a plurality, agreed on the fundamental bases for recognizing a cause of action

for the loss of a chance. The lead opinion explained:

To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.

Id. at 614. The plurality similarly noted that traditional all-or-nothing causation in lost

chance cases "'subverts the deterrence objectives of tort law.'" Id. at 634 (Pearson, J.,

plurality opinion) (quoting Joseph H. King, Jr., Causation, Valuation, and Chance in

Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90

Yale L.J. 1353, 1377 (1981)). Both opinions found that "the loss of a less than even

chance is a loss worthy of redress." Id. With emphasis, the lead opinion agreed,

stating that "'[n]o matter how small that chance may have been?and its magnitude

cannot be ascertained?no one can say that the chance of prolonging one's life or

decreasing suffering is valueless.'" Id. at 618 (Dore, J., lead opinion) (quoting James

v. United States, 483 F. Supp. 581, 587 (N.D. Cal. 1980)).


The lead and plurality opinions split over how, not whether, to recognize a

cause of action. Drawing from other jurisdictions, especially the Pennsylvania

Supreme Court's holding in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978),

the lead opinion held that the appropriate framework for considering a lost chance

claim was with a "substantial factor" theory of causation. The court summarized that

once a plaintiff has demonstrated that the defendant's acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.

Herskovits, 99 Wn.2d at 616 (additionally noting the Hamil court's reliance on the

Restatement (Second) of Torts § 323 (1965), which provides that one who renders

services to another, necessary for the protection of that person, is liable if "his failure

to exercise [reasonable] care increases the risk of [physical] harm").5 The "substantial

factor test" is an exception to the general rule of proving but for causation and requires

that a plaintiff prove that the defendant's alleged act or omission was a substantial

factor in causing the plaintiff's injury, even if the injury could have occurred anyway.

Fabrique v. Choice Hotels Int'l, Inc., 144 Wn. App. 675, 684, 183 P.3d 1118 (2008).

Rather than looking to the causation element, the plurality opinion in Herskovits

focused instead on the nature of the injury. Herskovits, 99 Wn.2d at 634 (Pearson, J.,

plurality opinion) ("[T]he best resolution of the issue before us is to recognize the loss

of a less than even chance as an actionable injury."). The plurality noted among its

concerns about the "all or nothing" traditional tort approach to recovery that it "creates

pressure to manipulate and distort other rules affecting causation and damages in an

attempt to mitigate perceived injustices." Id. In part, this characterizes what the

Herskovits lead opinion does by prescribing that causation in all lost chance cases is to

be examined under the substantial factor doctrine. The plurality found it more

analytically sound to conceive of the injury as the lost chance. Id.

Though this court has not reconsidered or clarified the rule of Herskovits in the

survival action context or, until now, considered whether the rule extends to medical

malpractice cases where the ultimate harm is something short of death, the Herskovits

majority's recognition of a cause of action in a survival action has remained intact

since its adoption. "Washington recognizes loss of chance as a compensable interest."

Shellenbarger v. Brigman, 101 Wn. App. 339, 348, 3 P.3d 211 (2000); see Zueger v.

Pub. Hosp. Dist. No. 2, 57 Wn. App. 584, 591, 789 P.2d 326 (1990) (finding that the

Herskovits "plurality represents the law on a loss of the chance of survival");16 David

K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 4.10, at

155-56, § 15.32, at 488 (3d ed. 2006) ("Washington courts recognize the doctrine of

'loss of a chance' as an exception to a strict application of the but-for causation test in

medical malpractice cases."). In Shellenbarger, the Court of Appeals reversed

summary judgment of a medical malpractice claim of negligent failure to diagnose and

treat lung disease from asbestos exposure in its early stages. 101 Wn. App. at 342.

Expert witnesses testified that had Shellenbarger received nonnegligent testing and

early diagnosis, which would have led to treatment, he would have "had a 20 percent

chance that the disease's progress would have been slowed and, accordingly, he would

have had a longer life expectancy." Id. at 348. The court concluded, "We find no

meaningful difference between this and Herskovits' lost chance of survival." Id. at

349.

Washington courts have, however, generally declined to extend Herskovits to

other negligence claims. See, e.g., Daugert v. Pappas, 104 Wn.2d 254, 260-62, 704

P.2d 600 (1985) (declining to apply Herskovits in a legal malpractice claim);

Fabrique, 144 Wn. App. at 685 (following Daugert and finding "no authority

supporting the application of the 'substantial factor' definition of proximate cause to a

negligence or strict liability action involving a contaminated food product"); Sorenson

v. Raymark Indus., Inc., 51 Wn. App. 954, 957, 756 P.2d 740 (1988) (distinguishing

Herskovits from an asbestos exposure claim that the plaintiff's risk of cancer was

increased). Such limitation is common: "[T]he courts that have accepted lost

opportunity as cognizable harm have almost universally limited its recognition to

medical-malpractice cases." Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 26 cmt. n at 356-57 (2010).

Herskovits has been widely cited as an authority by other state courts and in

journal articles for recognizing a cause of action in lost chance cases. See, e.g.,

Matsuyama v. Birnbaum, 452 Mass. 1, 16, 890 N.E.2d 819 (2008); McMackin v.

Johnson County Healthcare Ctr., 2003 WY 91, ¶¶ 16-17, 73 P.3d 1094, 1100, adhered

to on reh'g, 2004 WY 44, 88 P.3d 491; Tory A.Weigand, Loss of Chance in Medical

Malpractice: The Need for Caution, 87 Mass. L. Rev. 3, 9 (2002). Since Herskovits,

the majority of states that have considered the lost chance doctrine have adopted it,

although with varying rationales. Matsuyama, 452 Mass. at 10 n.23 (listing 20 states

and the District of Columbia that have recognized the lost chance doctrine); see

Weigand, supra, at 7-10. Several states have rejected the doctrine. Matsuyama, 452

Mass. at 10 n.23 (listing 10 states that have declined to adopt the doctrine). And

others have not yet reviewed the issue or have declined to reach the question. Id.

The rationales underpinning the lost chance doctrine have generally been

applied the same in wrongful death claims and medical malpractice claims where the

ultimate harm is something short of death. See, e.g., Shellenbarger, 101 Wn. App. at

349. In Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994), the Kansas Supreme

Court recognized a cause of action for loss of chance of a better outcome. The court

observed that

many jurisdictions are like Kansas, in that the issue has only come up in a loss of survival case or a loss of a better recovery case . . . .

We have found no authority or rational argument which would apply the loss of chance theory solely to survival actions or solely to loss of a better recovery actions and not to both.

Id. at 209-10. But cf. Weymers v. Khera, 454 Mich. 639, 653, 563 N.W.2d 647 (1997)

("we reject scrapping causation (the bedrock of our tort law) in negligence cases where

the injury alleged by the plaintiff is something less than death").6 We find no

persuasive rationale to distinguish Herskovits from a medical malpractice claim where

the facts involve a loss of chance of avoiding or minimizing permanent disability

rather than death. To limit Herskovits to cases that result in death is arbitrary; the

same underlying principles of deterring negligence and compensating for injury apply

when the ultimate harm is permanent disability.

We note that, significantly, nothing in the medical malpractice statute precludes

a lost chance cause of action. In relevant part, chapter 7.70 RCW provides that, in

order to prove "that injury resulted from the failure of the health care provider to

follow the accepted standard of care," a plaintiff must establish:

(1) The health care provider failed to exercise that degree of care,


skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;

(2) Such failure was a proximate cause of the injury complained of.

RCW 7.70.040. The chapter does not define "proximate cause" or "injury." RCW

7.70.020.

The principal arguments against recognizing a cause of action for loss of a

chance of a better outcome are broad arguments, similar to those raised when

Herskovits was decided: concerns of an overwhelming number of lawsuits and their

impact on the health care system; distaste for contravening traditional tort law,

especially regarding causation; discomfort with the reliance on scientific probabilities

and uncertainties to value lost opportunities. See Joseph H. King, Jr., "Reduction of

Likelihood" Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine,

28 U. Mem. L. Rev. 491, 506 (1998); Matsuyama, 452 Mass. at 15 (noting criticisms

of the doctrine, namely that it "upends the long-standing preponderance of the

evidence standard; alters the burden of proof in favor of the plaintiff; undermines the

uniformity and predictability central to tort litigation; results in an expansion of

liability; and is too complex to administer") However, none of these arguments

effectively distinguish the Mohrs' claim from Herskovits and seem instead to agitate

for its overruling. Now nearly 30 years since Herskovits was decided, history assures

us that Herskovits did not upend the world of torts in Washington, as demonstrated by

the few cases relying on Herskovits that have been heard by Washington appellate

courts.

We hold that Herskovits applies to lost chance claims where the ultimate harm

is some serious injury short of death. We also formally adopt the reasoning of the

Herskovits plurality. Under this formulation, a plaintiff bears the burden to prove

duty, breach, and that such breach of duty proximately caused a loss of chance of a

better outcome. This reasoning of the Herskovits plurality has largely withstood many

of the concerns about the doctrine, particularly because it does not prescribe the

specific manner of proving causation in lost chance cases. Rather, it relies on

established tort theories of causation, without applying a particular causation test to all

lost chance cases. Instead, the loss of a chance is the compensable injury.

The significant remaining concern about considering the loss of chance as the

compensable injury, applying established tort causation, is whether the harm is too

speculative. We do not find this concern to be dissuasive because the nature of tort

law involves complex considerations of many experiences that are difficult to calculate

or reduce to specific sums; yet juries and courts manage to do so. We agree that

[s]uch difficulties are not confined to loss of chance claims. A wide range of medical malpractice cases, as well as numerous other tort actions, are complex and involve actuarial or other probabilistic estimates.

Matsuyama, 452 Mass. at 18. Moreover, calculation of a loss of chance for a better

outcome is based on expert testimony, which in turn is based on significant practical

experience and "on data obtained and analyzed scientifically . . . as part of the

repertoire of diagnosis and treatment, as applied to the specific facts of the plaintiff's

case." Id. at 17. Finally, discounting damages responds, to some degree, to this

concern.

In Herskovits, both the lead and concurring opinions discussed limiting

damages. 99 Wn.2d at 619 (Dore, J., lead opinion), 635 (Pearson, J., plurality

opinion). This is a common approach in lost chance cases, responsive in part to the

criticism of holding individuals or organizations liable on the basis of uncertain

probabilities. Restatement (Third) of Torts: Liability for Physical and Emotional

Harm § 26 cmt. n at 356 ("Rather than full damages for the adverse outcome, the

plaintiff is only compensated for the lost opportunity. The lost opportunity may be

thought of as the adverse outcome discounted by the difference between the ex ante

probability of the outcome in light of the defendant's negligence and the probability of

the outcome absent the defendant's negligence."). Treating the loss of a chance as the

cognizable injury "permits plaintiffs to recover for the loss of an opportunity for a

better outcome, an interest that we agree should be compensable, while providing for

the proper valuation of such an interest." Lord v. Lovett, 146 N.H. 232, 236, 770 A.2d

1103 (2001). In particular, the Herskovits plurality adopted a proportional damages

approach, holding that, if the loss was a 40 percent chance of survival, the plaintiff

could recover only 40 percent of what would be compensable under the ultimate harm

of death or disability (i.e., 40 percent of traditional tort recovery), such as lost

earnings. Herskovits, 99 Wn.2d at 635 (Pearson, J., plurality opinion) (citing, King,

supra, 90 YALE L.J. at 1382). This percentage of loss is a question of fact for the

jury and will relate to the scientific measures available, likely as presented through

experts. Where appropriate, it may otherwise be discounted for margins of error to

further reflect the uncertainty of outcome even with a nonnegligent standard of care.

See King, supra, 28 U. Mem. L. Rev. at 554-57 ("conjunction principle").

We find that the Herskovits plurality has withstood the broad policy criticisms

raised against it and comports with the medical malpractice statute. We find no

meaningful basis to distinguish permanent disability from death for the purposes of

raising a loss of chance claim. Accordingly, we hold that Herskovits applies to

medical malpractice cases that result in harm short of death and formally adopt the

rationale of the plurality opinion that the injury is the lost chance. For the reasons

discussed next, as it relates to the facts of this case, we reverse the order of summary

judgment.

2. Summary Judgment


An order granting summary judgment is reviewed de novo. Rivas v. Overlake

Hosp. Med. Ctr., 164 Wn.2d 261, 266, 189 P.3d 753 (2008). Summary judgment

"shall be rendered forthwith if . . . there is no genuine issue as to any material fact and

. . . the moving party is entitled to a judgment as a matter of law." CR 56(c). We

review the evidence in the light most favorable to the nonmoving party. Miller v.

Jacoby, 145 Wn.2d 65, 71, 33 P.3d 68 (2001).

Interpreting the facts in the light most favorable to the Mohrs, they have made a

prima facie case under the lost chance doctrine that, on August 31 and September 1,

2004, the respondents breached the recognized standard of care for treating a head

trauma victim with Mrs. Mohr's symptoms and that their breaches caused Mrs. Mohr a

diminished chance of a better outcome. The Mohrs presented the expert testimony of

doctors Becker and Harris. Their testimony included opinions regarding breaches of

the standard of care: that once given a narcotic, Mrs. Mohr should not have been

discharged but observed overnight; that, had Mrs. Mohr been held overnight, her

neurological deficits would have been earlier discovered to be a stroke; and that

anticoagulants, antiplatelet agents, and general brain protective care reduce the

damage caused by strokes. The expert testimony also included information regarding

causation, including Dr. Becker's opinion that had Mrs. Mohr "received anti-

thrombotic therapy there's at least a 50 to 60 percent chance that things could have

had a better outcome. . . . Less disability, less neglect, less . . . of the symptoms of

right hemispheric stroke." CP at 225-26. Dr. Harris testified that had Mrs. Mohr

received nonnegligent treatment at various points between August 31 and September

1, 2004, she would have had a 50 to 60 percent chance of a better outcome. This

included the possibility, according to Dr. Harris, that Mrs. Mohr may have had no

disability if she had been properly treated. We find, on this evidence, a prima facie

showing of duty, breach, injury in the form of a lost chance, and causation.

Respondents also argue that the case cannot go forward because the Mohrs

have not proved damages. This is a misconception of the requirements of medical

malpractice tort law. See RCW 7.70.040. The Mohrs have made a prima facie case of

injury: lost chance of a better outcome.

Finally, KMC separately asserts that the trial court's order of summary

judgment in its favor should be affirmed because it is not vicariously liable for the

negligence of the codefendant physicians.7 However, the Mohrs' and KMC's

competing contentions regarding apparent agency and resulting vicarious liability

present a question of fact that is not disposable on summary judgment as a matter of

law. We therefore reverse the order of summary judgment as to KMC.

Under apparent authority, an agent (e.g., a doctor) binds a principal (e.g., a

hospital) if objective manifestations of the principal "cause the one claiming apparent

authority to actually, or subjectively, believe that the agent has authority to act for the

principal" and such belief is objectively reasonable. King v. Riveland, 125 Wn.2d 500,

507, 886 P.2d 160 (1994). A finding of apparent agency can subject a hospital to

vicarious liability for the negligence of contractor physicians or staff working at the

hospital. See, e.g., Adamski v. Tacoma Gen. Hosp., 20 Wn. App. 98, 107-08, 579 P.2d

970 (1978).

KMC and the Mohrs dispute whether the Mohrs could and did reasonably

believe that any of the codefendant physicians were employees or agents of KMC.

The Mohrs signed a form that included the following language:

Patient care is under the control of the patient's attending physician who: is an independent provider and not an employee or agent of the hospital: May request other physicians to provide services during hospitalization (i.e. pathologists, anesthesiologists, radiologists).

CP at 107. Without considering the clarity of this language, we note that there are

other relevant considerations, including: discharge instructions from the "[KMC]

Emergency Department" that included information about treatment by Dr. Grantham

at KMC; physician name tags that included KMC with the doctors' names; billing

statements from KMC; and identification of Dr. Watson as a "'Hospitalist'" for KMC.

Id. at 108, 268-70. It is also informative that KMC's emergency room is an essential

part of its operation. See Adamski, 20 Wn. App. at 115.

In Adamski, the Court of Appeals considered several factors that it found

relevant to the question of whether an independent-contractor physician was an

apparent agent of the hospital. Id. at 115-16. It stated that "courts generally look to

all of the facts and circumstances to determine if the hospital and doctor enjoy such a

'significant relationship' that the rule of respondeat superior ought to apply." Id. at

108. Similarly, the published model jury instructions enumerate seven relevant factors

for the determination of apparent agency in the hospital and independent-contractor

physician context. 6 Washington Practice: Washington Pattern Jury Instructions: Civil

105.02.03 (5th ed. 2005). One factor is "[w]hether the hospital made any

representations to the patient, verbally or in writing, regarding their relationship with

the physician." Id. However, "no one of [the factors] is controlling." Id. Thus, the

notice that the Mohrs received disclaiming an agency relationship between KMC and

the treating physicians is but one factor to consider.

KMC argues that even if there is apparent agency, the hospital is not liable for

negligent acts of physicians that it could not control. Cf. McLean v. St. Regis Paper

Co., 6 Wn. App. 727, 729-30, 496 P.2d 571 (1972). However, the negligence alleged

here concerns the provision of medical services and is well within the scope of the

apparent agency relationship alleged between the physicians and KMC. As in

Adamski, we find that a hospital may be, depending on the facts found by a jury, liable

for the negligence of its contractor doctors, who are held out to be agents of the

hospital. Accordingly, we reverse the order of summary judgment.

* * *

See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=847126MAJ

We hold that there is a cause of action in the medical malpractice context for

the loss of a chance of a better outcome. A plaintiff making such a claim must prove

duty, breach, and that there was an injury in the form of a loss of a chance caused by

the breach of duty. To prove causation, a plaintiff would then rely on established tort

causation doctrines permitted by law and the specific evidence of the case. Because

the Mohrs made a prima facie case of the requisite elements of proof, we reverse the

order of summary judgment and remand to the trial court for further proceedings.