Wyo. Med-Mal Bill Voted Down

January 21, 2005

One of the proposals to help control medical malpractice insurance costs in Wyoming failed to garner enough votes to get to the state House floor.

The House Labor, Social Services and Health Committee split 4-4 on the bill Wednesday. Under House rules, a tie dooms a measure to failure.

The bill would have abolished the “loss of chance” medical malpractice doctrine. “Loss of chance” is a complex legal concept that seeks to compensate patients who suffer negligent misdiagnoses or missed diagnoses leading to a lesser chance of recovery. They can get financial compensation in proportion to the amount of chance lost because of the mistake.

For example, a cancer patient might have a tumor that should have been spotted at a time when they had a 70 percent chance for recovery but is not found until their chance is only 20 percent, according to a Wyoming Tribune-Eagle report.

The doctrine, established by the Wyoming Supreme Court in 2003, allows patients to seek payment for the lost chance of recovery.

Several representatives of the legal and medical professions spoke before the vote.

James Kaste, a lawyer with Lathrop and Ruteledge, spoke on behalf of the Wyoming Hospital Association, which supports abolishing the doctrine. He said the doctrine is unfair because it targets only health care providers.

He also argued that since physicians are not the immediate cause of the loss – presumably the illness itself is – that they should not be held at fault.

“These people’s injuries are very real,” he said. “But the doctors shouldn’t be responsible because they’re not the cause.”

Wendy Curran of the Wyoming Medical Society agreed.

“We are concerned this separates physicians out,” she said.

As one of the doctrine’s negative impacts, she said some radiologists are reluctant to examine mammograms for tumors for fear of potential litigation.

Rep. Becket Hinckley, R-Cheyenne and the bill’s original sponsor, asked that if for no other reason it be moved out of committee so the Legislature at least would have a chance to debate it.

But Robert Tiedeken, a trial lawyer with Wolf and Tiedeken, countered that it’s not that the doctrine requires proof physicians were the immediate cause of the illnesses, just that they were the cause of the loss of a better chance for recovery.

Furthermore, the court’s standard is the same as that adopted by the majority of other states that have considered it, he said.

“This is being overblown,” he said.

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