Smith v. Parrott

833 A.2d 843 (2003)

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Nature of the Case

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Facts

On July 31, 1995, P awoke to find that he had no motor control over the use of his left foot. That afternoon he went to see D. D noted that plaintiff had had two prior back surgeries, and described plaintiff's condition as a 'dramatic foot drop on the left side.' D referred plaintiff to a neurosurgeon. Eleven days later, plaintiff was examined by Dr. Joseph Phillips, a neurosurgeon. Dr. Phillips concluded that P's condition was complete or permanent and that there was no possibility of any functional recovery. P underwent surgery in early September to alleviate pain. His motor functions did not improve. P sued D alleging that the failure to advise P of the need for an immediate neurological examination, and his failure to arrange such an examination, had resulted in the deterioration of P's condition. D moved for summary judgment, in that P failed to prove that D's conduct - even if below the standard of care - was the proximate cause of P's injuries. D relied on the deposition testimony of Pf's expert witness, Dr. Donald Myers, who had initially opined that an earlier consultation with a neurosurgeon could have yielded a '50-50 chance' of 'some recovery,' but later amended his opinion to state that, in light of P's history of back surgery, the chance of some recovery was 'a little bit' less than fifty percent. The court granted the motion. It rejected P's effort to recover on a lesser showing under the so-called 'loss of chance' doctrine. P appealed.