In Wadsworth v. Sharma, No. 40-2021, (Md. 2022), the deceased, who had been in remission from breast cancer, had an abnormal scan showing a new and potentially cancerous lesion on her clavicle. However, the reviewing physician did not report the result to the patient or conduct further testing. Three years later, after an unrelated accident, the cancerous lesion in the patient’s clavicle was rediscovered. She died of cancer 15 months later.
The deceased’s surviving family filed a survival action and wrongful death action. The defendants argued that “loss of chance,” the legal theory upon which the lawsuit was based, is not recognized in Maryland. The Circuit Court granted the motion for summary judgment, finding that the cause of action for loss of chance does not exist as a cause of action in Maryland (at 4).
The majority of the Maryland Court of Appeals explained that to satisfy proximate cause the wrongful act or omission must be: (1) a cause in fact; and, (2) a legally cognizable cause of the injury. Traditional causation principles apply in wrongful death and survival claims. Therefore, 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 (at 11).
The majority noted that the Maryland Court of Appeals has consistently rejected the loss of chance doctrine in deference to the General Assembly as the better forum to make policy determinations regarding the wrongful death statute (at 14).
In this case, the deceased’s metastatic breast cancer caused her death. According to the undisputed expert opinions, the deceased did not have a greater than fifty percent chance of survival absent the reviewing physician’s alleged negligence (at 22). Without evidence to show that the deceased had a greater than fifty percent chance of survival, as a matter of law, the plaintiffs could not meet their burden of proving by a preponderance of the evidence that the reviewing physician’s alleged negligence caused the deceased’s death (at 22-23).
As a result of the plaintiff's failure to meet the burden of proof and the unavailability of the loss of chance doctrine, the Maryland Court of Appeals affirmed that the wrongful death claim could not proceed and affirmed the ruling of the lower court (at 23-24).