*Philip Glaser
The Supreme Court of Maryland rejected the loss of chance doctrine for claims of negligently hastened death by terminal illness. Wadsworth v. Sharma, 278 A.3d 1269 (Md. 2022).
I. Introduction
In Wadsworth v. Sharma, the Supreme Court of Maryland considered whether to adopt the loss of chance doctrine in wrongful death cases where the decedent’s survival odds were fifty percent or less.[1] The family of the terminally ill Ms. Wadsworth sued her oncologist for failure to act on a scan that revealed she had a fatal cancer. The family sought recovery that accounted for the two and a half years of estimated survival of which the doctor’s negligence deprived her.[2] Traditional causation principles require the plaintiff to prove “that the defendant proximately caused the decedent’s death,”[3] which, under the majority’s view, is impossible for a plaintiff who dies of a terminal illness.[4] Alternatively, the loss of chance doctrine permits a plaintiff to satisfy the lower standard of proof that the defendant’s negligence at least caused a loss of chance at a better outcome.[5] On appeal, the Supreme Court of Maryland interpreted the Wadsworth’s argument as a loss of chance claim but refused to recognize the doctrine because it was inconsistent with Maryland’s Wrongful Death Act and the case was insufficient to overcome stare decisis.[6] The court affirmed summary judgment in favor of the defendant for the plaintiff’s failure to prove that the defendant proximately caused the decedent’s death.[7] Justice Watts’s dissent, however, highlighted a slightly different application of traditional causation principles that would establish a remedy for those whose family members have died because of negligently hastened terminal illness, closing the gap in Maryland tort law which the Wadsworths fell into.[8]
II. Historical Development
A. Maryland’s Wrongful Death Act of 1852 Permitted Personal Actions on Behalf of Deceased Persons.
At common law, “a personal action died with the person,” preventing any action on behalf of a deceased person after death, including an action pertaining to that person’s wrongfully-caused death.[9] English Parliament passed the Fatal Accidents Act of 1846 to address this bind.[10] The Act expressly created liability for an actor who causes a person’s death, “notwithstanding the death,” and permitted the family of that deceased person to recover for the death.[11] Every state in the United States has adopted a similar statute[12] and, in 1852, Maryland passed its own Wrongful Death Act for the same purpose, with language very similar to the Fatal Accidents Act.[13] Since that time, the General Assembly has amended the Wrongful Death Act three times, each for the exclusive purpose of extending the time within which a wrongful death claim may be brought.[14]
B. The Supreme Court of Maryland Applies Traditional Causation Standards for Wrongful Death and Survival Claims.
The Wadsworth court refers to “traditional” and “well-settled” causation principles as its rule for assessing causation in wrongful death and survival actions,[15] clarifying that “the plaintiff bears the burden of proving by a preponderance of the evidence that the alleged wrongful act or omission proximately caused the decedent’s death.”[16] A plaintiff who cannot prove that the decedent had a greater than fifty percent chance of survival absent any negligence is, as a matter of law, unable to meet the burden necessary to prove proximate cause.[17] In contrast, the loss of chance doctrine “permits a claimant to recover where a physician’s breach of the standard of care . . . caused the loss of a statistical chance of survival or of a better outcome.”[18] Unlike traditional causation principles, the doctrine permits recovery in medical malpractice claims for decedents who had a fifty percent or less chance of survival absent any negligence.[19] Twenty-four jurisdictions have adopted the standard[20] in some form.[21] In a line of wrongful death and survival cases, the Supreme Court of Maryland consistently declined to adopt the loss of chance doctrine, finding instead that traditional causation principles resolve liability in a manner that does not justify upsetting precedent.[22]
In Weimer v. Hetrick, a wrongful death case decided in 1987, the court reviewed jury instructions which demanded the jury find in favor of the defendant doctor if it concluded that the decedent baby’s prematurity was less than fifty percent survivable absent any negligence.[23] The plaintiff argued that a case previously heard by the Supreme Court of Maryland, Thomas v. Corso, only required the plaintiff to prove that the baby had a “substantial possibility of survival [which] the defendant ha[d] destroyed,”[24] a standard borrowed from the Fourth Circuit case, Hicks v. United States.[25] The Weimer court dismissed the quote used in Thomas as dictum, asserting that “no new ground [has] been plowed by Hicks or Thomas,” and that causation in both cases was in fact established using traditional principles.[26] The court denied the plaintiff’s appeal of the jury instructions, holding that no alternative standard of causation was called for and that the jury correctly applied the traditional standard.[27] In his concurrence, Judge McAuliffe expressly noted that, for the very reason that traditional causation principles applied, the court did not arrive at any judgment on the loss of chance doctrine, which “must await resolution on another day.”[28]
C. The Supreme Court of Maryland Declined to Adopt the Loss of Chance Doctrine.
In 1990, the court took up the issue of loss of chance directly in Fennell v. Southern Maryland Hospital Center, Inc.[29] The plaintiffs, in full recognition that Maryland law did not offer a remedy for a wrongful death claim in the wake of Weimer, petitioned the Supreme Court of Maryland arguing that a remedy should be available for their survival claim via the loss of chance doctrine.[30] The court reviewed both rationales for using the loss of chance doctrine that have been adopted elsewhere: (1) as a means to relax the causation standard; and (2) as a means of assessing damages.[31]
First, the court rejected relaxing causation standards to allow a finding of full liability for anything less than fifty-one percent responsibility, reasoning that doing so would lower a bar intentionally set to filter out uncertain causation[32] and would violate legislative expectations.[33] In so holding, the court affirmed its decision in Weimer to disregard the concept of a “substantial possibility of survival”[34] as “at best dictum.”[35]
Second, the court rejected the use of loss of chance to calculate damages on policy grounds.[36] The court did acknowledge that “[a] good argument can be made that damages ought to be recoverable when, due to a doctor’s negligence, a patient loses a substantial, though less than probable, chance of survival.”[37] But the court reasoned that a remedy for loss of chance of survival itself should, in principle, permit even those who survive to recover damages—an outcome which it rejected as inconsistent with Maryland law.[38] The court also argued that application of disputed probabilities would be impractical at trial.[39] Further, adopting the loss of chance doctrine would result in increased malpractice litigation and cause a significant economic impact—two consequences that bar judicial enactment.[40] By declining to adopt the doctrine, the court maintained the gap in tort law that precludes a remedy for persons who die of negligently hastened terminal illness.
III. Instant Case
Stephanie Wadsworth received a breast cancer diagnosis in 2006 and, following treatment, doctors declared her in remission in 2008.[41] In 2013, Ms. Wadsworth’s oncologist, Dr. Poornima Sharma, conducted a breast cancer screening that revealed a new and potentially cancerous lesion on Ms. Wadsworth’s clavicle.[42] Dr. Sharma and a radiologist did not believe the abnormal lesion was cancerous,[43] so Dr. Sharma did not inform Ms. Wadsworth of the abnormal lesion or conduct further testing.[44] In March 2016, Ms. Wadsworth injured her shoulder and went to the hospital, where she received a bone scan that incidentally revealed the abnormal lesion on her clavicle as metastasized cancer consistent with an origin of breast cancer.[45]
Ms. Wadsworth died from cancer in June 2017 and her family subsequently filed wrongful death and survival actions against Dr. Sharma and others.[46] Depositions of other doctors established that Ms. Wadsworth’s cause of death was metastatic breast cancer and that the condition is nearly always fatal, though the average person can expect to live eighty months from the date of an abnormal scan of the kind that Dr. Sharma disregarded.[47] Ms. Wadsworth’s death occurred two and a half years short of this expectation.[48] The trial court interpreted the pleadings as loss of chance claims and granted summary judgment to the defendants on the grounds that Maryland recognizes no such cause of action.[49] The trial court noted that, under traditional causation principles for a wrongful death claim, the facts indicated Ms. Wadsworth’s cancer as the proximate cause of her death, so Dr. Sharma could not be found liable as a matter of law.[50] The Appellate Court of Maryland confirmed the trial court’s judgment, holding that it was impossible for the Wadsworths to meet their burden under traditional causation.[51] The Supreme Court of Maryland granted a writ of certiorari to answer whether a wrongful death claim may be made against a “health care provider [who] shortened the terminally ill decedent’s life.”[52]
The majority rejected the possibility of such a claim, citing both the legislative intent of the Wrongful Death Act and its prior judicial application, as well as a lack of practical urgency sufficient to overcome the barrier of stare decisis.[53] First, the court deemed that the plain language of the Wrongful Death Act unambiguously demanded traditional causation principles[54] and that the legislature’s silence was acquiescence to the court’s interpretation of the law.[55] Second, an examination of the case law, chiefly Weimer and Fennell, revealed no factual distinction that could save the Wadsworths’ claim from the same preclusive analysis applied in those two controlling cases on wrongful death and survival claims.[56] Each dealt with patients whose chances for survival fell below fifty percent, rendering a wrongful death claim against a negligent health care provider deficient as a matter of law for lack of causation under traditional principles.[57] The court also echoed the Fennell court’s practical considerations as reasons not to adopt loss of chance.[58] Finally, the court concluded that implementing the loss of chance doctrine would violate stare decisis because the present reliance on traditional causation principles is not “clearly wrong and contrary to established principles” nor has it been “superseded by significant changes in the law or facts.”[59] The court agreed with its conclusion in Fennell[60] to defer policy concerns to the legislature; if the loss of chance doctrine is to take effect in Maryland, it should be enacted legislatively rather than judicially.[61]
In her dissent, Justice Watts agreed with the majority that there is no need to resort to the loss of chance doctrine for the Wadsworths’ claim, but asserted a distinction between this case and the majority’s controlling cases revealed by a novel interpretation of traditional causation principles: assessing a decedent’s odds of survival at their time of death, rather than at the onset of the fatal condition.[62] Given Ms. Wadsworth’s estimated survival for a further two and a half years after her actual death, her chance of survival absent negligence at the time of her death was likely over fifty percent, which Justice Watts argued would make her eligible for recovery under traditional causation principles.[63] The same could not be said for the decedents in Weimer and Fennell, neither of whom had a chance of survival absent negligence greater than fifty percent at their respective times of death and both of whom died soon after their terminal conditions manifested.[64] Justice Watts argued that the distinction between death by an incurable terminal illness and death by other causes “is an arbitrary line to draw and an inappropriate application of Maryland case law.”[65] She further questioned “how long would be long enough for long-term survival” for the majority to reject the conclusion that the decedent had no chance of survival.[66] Justice Watts asserted that the majority misplaced its reliance on the legislature’s silence as acquiescence to the court’s interpretation of the Wrongful Death Act.[67] The dissent concluded that the majority’s interpretation of traditional causation principles likely precludes the terminally ill from making claims of negligent treatment[68] and that the substantial incidence and increasing survivability of such illnesses calls for a remedy for such claims.[69] The majority made no response to Justice Watts’s dissent.[70]
IV. Analysis
A. Though the Merits of Loss of Chance Are Disputed, the Majority Has Not Built a Strong Theoretical Case Against It.
The criticisms of the loss of chance doctrine from Fennell, endorsed by the Wadsworth court,[71] included that loss of chance would allow those who survive their illnesses to recover on “mere possibilities,” which Maryland law does not allow.[72] However, as indicated by the Wadsworth majority’s chosen authority on the loss of chance doctrine,[73] “[t]he law has moved from harm based to risk based” tort liability in U.S. jurisdictions.[74] In matters where forty-nine percent survival is a bar to recovery, while fifty-one percent is grounds for full recovery, the line that traditional causation principles straddle is the width of a “mere possibility.”[75] Accounting for these differences through a new doctrine like loss of chance permits legal distinctions between negligence that shortens a terminally ill person’s expectation of survival by years versus by days.
The Fennell court also criticized the loss of chance doctrine’s reliance on potentially “unreliable, misleading, easily manipulated, and confusing” probabilities and statistical evidence.[76] Notwithstanding the Fennell court’s own statement that “[t]raditional tort law is based on probabilities,”[77] it is difficult to otherwise imagine what class of information would better account for the complex synthesis of risks, liabilities, and credibilities that ultimately must be reduced to a dollar amount than numbers in the form of statistical evidence. Indeed, in 2000, the Supreme Court of South Dakota specifically found justification for adopting the loss of chance doctrine in medical malpractice cases in “‘the availability of statistical probabilities in the field of medical science’ not available elsewhere.”[78] If the Wadsworth court fears “confusing factfinders”[79] with numbers, then the court takes issue with the foundations of tort law.
Most critically, the Fennell and Wadsworth courts agreed that that no change of legal or factual circumstances permitted them to adopt loss of chance as an exception to stare decisis.[80] Though Justice Watts’s dissent argued against this conclusion in favor of adopting a different interpretation of traditional causation principles,[81] she discussed the legal and factual realities in a manner supportive of any doctrine that would permit recovery for terminally ill people whose lives are negligently cut short,[82] including loss of chance. As to the legal considerations, Justice Watts noted that, in the past, where the Court has found “an injury for which there exists no remedy, . . . the Court has acted to fill the gap.”[83] Though Justice Watts accused the Majority of not ignoring the gap, but in fact creating it through this decision,[84] her appeal to this gap in the law nevertheless stands to support a break with legal precedent, such as challengers may urge in cases to come. As to the factual circumstances, Justice Watts also emphasized the dramatic prevalence of cancer[85] and how technology has improved its survivability.[86] With increasing cancer life expectancies, one can infer that, in the future, Maryland will likely see more damaging and potentially more numerous occurrences of medical negligence that hasten death by cancer. Though Justice Watts viewed the loss of chance doctrine as unnecessary to fill the widening remedy gap she foresaw,[87] she nevertheless made a forceful showing of the concerning legal and factual realities[88] that other jurisdictions have addressed by breaking with stare decisis.[89]
B. The Dissent Offers a Happy Medium Causation Standard to Cover the Terminally Ill.
Justice Watts’s dissenting assertion, that survival expectations should be measured at the time of death, would close the gap in recovery for the terminally ill that the majority permits to remain open.[90] This interpretation does not alter other characteristics of traditional causation principles,[91] so it should be straightforward for courts to apply. With the amount of contention that the loss of chance doctrine has generated between judiciaries and legislatures in other states,[92] the simple modification of traditional causation principles to measure survival expectations at the time of death instead of at the onset of the terminal condition seems a viable way forward for Maryland.
V. Conclusion
Wadsworth’s holding makes no change to Maryland’s treatment of wrongful death claims; there remains no remedy for victims of medical malpractice who die from negligently hastened terminal illness.[93] Though the majority considers the loss of chance doctrine too great of a theoretical departure from traditional causation to be a viable solution,[94] Justice Watts’s dissent shows that an intuitive and minimally divergent doctrinal interpretation can affect an equitable outcome in Wadsworth.[95] For this reason, it is unclear why the majority offered no commentary or words to assert its orthodox approach as superior. From the majority’s silence, one can infer that no good rebuttal exists, and that Justice Watts’s approach will have its day when the political winds are right.
*Philip Glaser is a second-year student at the University of Baltimore School of Law and a staff editor for Law Review. He came to law school after a decade-long career in education. In the summer of 2023, Philip worked as a judicial intern for Hon. Brendan A. Hurson at the U.S. District Court for the District of Maryland. In the fall, he is serving as a Law Scholar for Professor Dolin’s Torts class. Philip intends to practice at the intersection of criminal defense and civil rights.
[1] Wadsworth v. Sharma, 278 A.3d 1269, 1275 (Md. 2022).
[2] Id. at 1273–75.
[3] Id. at 1272.
[4] Id. at 1291 (Watts, J., dissenting) (“[T]he Majority has applied case law in a manner that . . . prevent[s] families with terminally ill relatives from recovering in wrongful death actions.”).
[5] Id. at 1273 (majority opinion).
[6] Id. at 1285.
[7] Id.
[8] Id. at 1293 (Watts, J., dissenting).
[9] Id. at 1276 (majority opinion) (citing Parker v. Hamilton, 160 A.3d 615, 619 (Md. 2017)).
[10] Id.
[11] Id. at 1276–77 (quoting Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (Eng.)).
[12] Id. at 1277 (citing Parker, 160 A.3d at 619).
[13] Id. (citing Mummert v. Alizadeh, 77 A.3d 1049, 1053 (Md. 2013)); Md. Code Ann., Cts. & Jud. Proc. §§ 3-901 to 3-904 (West 2023).
[14] Wadsworth, 278 A.3d at 1277 (noting the latest amendment in 1971, which extended the window to bring a wrongful death claim to three years).
[15] Id. at 1272–73, 1278, 1282, 1284; Weimer v. Hetrick, 525 A.2d 643, 653 (Md. 1987) (McAuliffe, J., concurring); Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 210–12 (Md. 1990).
[16] Wadsworth, 278 A.3d at 1278.
[17] Id. at 1284–85.
[18] Id. at 1280 (quoting Tory A. Weigand, Lost Chances, Felt Necessities, and the Tale of Two Cities, 43 Suffolk U. L. Rev. 327, 349 (2010)).
[19] Id. at 1288 (Watts, J., dissenting).
[20] Id. at 1293 n.2.
[21] Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 210 (quoting Cooper v. Hartman, 533 A.2d 1294, 1297 (Md. 1987) (clarifying that “[s]ome have simply relaxed the standards regarding causation and allowed full compensation for an injury or death where the plaintiff demonstrated less than a 50% chance of recovery. Others have left the traditional rules of causation intact but have viewed the loss of a chance as a way of approaching damages.”).
[22] Id. at 215 (“Consequently, we are not persuaded that the benefits of allowing loss of chance damages in a survival action offset the detriments of a probable increase in medical malpractice litigation and malpractice insurance costs.”); Wadsworth, 278 A.3d at 1284 (invoking stare decisis to maintain traditional causation rules which are not “clearly wrong and contrary to established principles” (quoting Wallace v. State, 158 A.3d 521, 535 (Md. 2017))).
[23] Weimer v. Hetrick, 525 A.2d 643, 646–47 (Md. 1987).
[24] Id. at 647 (quoting Thomas v. Corso, 288 A.2d 379, 390 (Md. 1972)).
[25] Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966).
[26] Weimer, 525 A.2d at 652.
[27] Id.
[28] Id. at 653 (McAuliffe, J., concurring).
[29] Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 215 (Md. 1987).
[30] Id.
[31] Id. at 210.
[32] Id. at 211.
[33] Id. at 211–12 (referring to the likely legislative intent behind a statute establishing a medical malpractice cause of action, which requires that “the departure from standards of care is the proximate cause of the alleged injury” (emphasis omitted) (quoting Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(1)(i) (West 2023))).
[34] See discussion supra Section II.B.
[35] Fennell, 580 A.2d at 211.
[36] Id. at 215.
[37] Id. at 212.
[38] Id. at 213 (“Maryland law clearly does not allow damages based on mere possibilities.”).
[39] Id. at 213–14.
[40] Id. at 214–15 (“Recognizing loss of chance damages in a survival action would involve serious public policy concerns. We are not convinced that such a change should be initiated by this Court.”).
[41] Wadsworth v. Sharma, 278 A.3d 1269, 1273 (Md. 2022).
[42] Id.
[43] Id. at 1273 n.2.
[44] Id. at 1273.
[45] Id. at 1273–74.
[46] Id. at 1274.
[47] Id.; Wadsworth v. Sharma, 254 A.3d 66, 70 & n.4 (Md. Ct. Spec. App. 2021), aff’d, 278 A.3d 1269 (Md. 2022).
[48] Wadsworth, 278 A.3d at 1275.
[49] Id. at 1274.
[50] Id.
[51] Wadsworth, 254 A.3d at 80 (“The evidence presented to the motions court proved that at the time of the alleged negligence, the decedent didn’t have an over 50% chance of a cure. . . . The motions judge had no choice but to grant summary judgment in favor of the defendants-appellees as to the wrongful death claim.”).
[52] Wadsworth, 278 A.3d at 1275.
[53] Id. at 1285.
[54] Id. at 1278 (finding the grant by Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) of an action “against a person whose wrongful act causes the death of another,” to require traditional causation by its plain language).
[55] Id. at 1279 (noting that the only amendments to the Wrongful Death Act have been to extend the window for claims thereunder).
[56] Id. at 1280–83.
[57] Id. at 1282–83.
[58] Id. at 1283 (“Further, we noted practical difficulties with recognizing the loss of chance doctrine, including the risk of confusing factfinders.”).
[59] Id. at 1284 (quoting Wallace v. State, 158 A.3d 521, 535 (Md. 2017)).
[60] See supra notes 29–40 and accompanying text.
[61] Wadsworth, 278 A.3d at 1279, 1284.
[62] Id. at 1286 (Watts, J., dissenting).
[63] Id.
[64] Id. at 1287–88.
[65] Id. at 1290 (analogizing Wadsworth with Marcantonio v. Moen, 959 A.2d 764, 775–76 (Md. 2008), in which the Supreme Court of Maryland reversed summary judgment against a plaintiff whose decedent likely would not have died from endometrial cancer had the doctor not been negligent in failing to diagnose).
[66] Id. at 1291.
[67] Id. at 1292 (“[T]his Court has never interpreted the Wrongful Death Act in the manner in which the Majority does now to preclude its application to a person who has a greater than fifty percent chance of survival at the time of death. In other words, the General Assembly could not have been aware of, let alone have acquiesced to, the Majority’s present interpretation of the Act.”).
[68] Id. at 1293.
[69] Id. (noting that forty percent of Marylanders will be diagnosed with cancer at some point in their lives).
[70] See id. at 1285 (majority opinion).
[71] See discussion supra Section II.C.
[72] Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 213 (Md. 1990).
[73] See supra note 18.
[74] Tory A. Weigand, Lost Chances, Felt Necessities, and the Tale of Two Cities, 43 Suffolk U. L. Rev. 327, 392 (2010). “As it presently stands, approximately eighteen states have recognized the doctrine in some form, while approximately thirteen states have rejected it.” Id. at 351.
[75] Fennell, 580 A.2d at 213 (“Maryland law clearly does not allow damages based on mere possibilities.” (citingPennwalt Corp. v. Nasios, 550 A.2d 1155, 1161 (1988))).
[76] Id.
[77] Id. at 214.
[78] Weigand, supra note 74, at 359–60 (quoting Jorgenson v. Vener, 616 N.W.2d 366, 371 (S.D. 2000)).
[79] Wadsworth v. Sharma, 278 A.3d 1269, 1283 (Md. 2022).
[80] Id. at 1284; Fennell, 580 A.2d at 214–15.
[81] Wadsworth, 278 A.3d at 1291 (Watts, J., dissenting).
[82] Id. at 1291, 1293.
[83] Id. at 1291.
[84] Id.
[85] Id. at 1293 (“[F]orty percent of men and women will be diagnosed with cancer at some point in their lives[.]”).
[86] Id. at 1291 (“Because of this standard of care and advances in technology, cancer mortality rates continue to decline for adults.” (citing U.S. Dep’t of Health & Hum. Servs. Nat’l Cancer Inst., Annual Report to the Nation 2021: Overall Cancer Statistics (2021), https://seer.cancer.gov/report_to_nation/statistics.html [https://perma.cc/AGW7-FCGM])).
[87] Id. at 1289. (“Put simply, this is not a loss of chance case.”).
[88] Id. at 1291, 1293.
[89] See Weigand, supra note 74.
[90] Wadsworth, 278 A.3d at 1286, 1293 (Watts, J., dissenting).
[91] See id. at 1286, 1293.
[92] See Weigand, supra note 74, at 354–64 (noting that all state legislation pertaining to loss of chance has been exclusively in response to judicial adoption of the doctrine, including in Michigan, New Hampshire, West Virginia, South Dakota, Montana, and Massachusetts).
[93] See discussion supra Part III.
[94] See discussion supra Section IV.A.
[95] See discussion supra Section IV.B.
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