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Jorgenson v. Vener2/6/2002
ligent, there was no indication that the plaintiffs would have taken advantage of the medical intervention, namely, an abortion. Id. In fact, one guardian testified that an abortion had not even been considered. Id. The court stated the facts merely "show that the doctor's actions caused a loss of the chance to consider an abortion, not the chance to obtain an abortion." Id. (emphasis added). Similarly, in Aguilera v. Mount Sinai Hospital Medical Center, the plaintiff argued that the doctor's negligent delay in administering a CT scan resulted in the failure to perform surgical intervention. 691 NE2d 1, 6 (IllAppCt 1997). The court, however, held the absence of evidence showing the CT scan would have led to the performance of neurosurgery failed to satisfy proximate cause. Id. at 6-7. In essence, a plaintiff cannot recover on a cause of action for lost chance when the plaintiff concedes the doctor's negligence never prevented him from actually availing himself of the opportunity to achieve a better outcome.
[ .] The majority of courts considering loss of chance claims have held that not only does the plaintiff have to prove that the defendant's negligence increased the risk of harm, the plaintiff must also prove that the defendant's negligence was a "substantial factor" in bringing about the ultimate injury. This "substantial factor" test is nothing more than a test for proximate cause. Jorgenson, by his own admission, has shown that the lost chance was not a substantial factor in his undergoing an amputation.
[ .] Furthermore, Jorgenson did not believe that the possibility of saving his leg, given the length and rigor of the treatment necessary in such an attempt, would have achieved a better result. When asked if he would have changed his mind had he been given a seventy-five percent success rate as opposed to a sixty- percent success rate, Jorgenson testified "Probably not . . . . I don't have 2 ½ years to be there and I don't want bone grafts, operations, and still probably lose my leg. Plus, it would have been a fused ankle with a rocker bottom shoe, so I would still have been crippled." See Vaughn v. John Morrell & Co., 2000 SD 31, , 606 NW2d 919, 926 (holding plaintiff may not "assert a better version of the facts" than testified to below) (citation omitted). Jorgenson's informed choice interceded to preclude the increase of chance from saving his leg, in effect reducing the chance of a better outcome to zero. See Alberts, 975 P2d at 1285 (holding loss of chance claim exists only where injury could have been avoided, but " orrecting the problem is no longer possible."); Falcon v. Memorial Hosp., 462 NW2d 44 (Mich 1990) (holding plaintiff claiming lost chance must prove defendant reduced opportunity of avoiding harm) rev'd in part on other grounds, 467 NW2d 25 (Mich 1991). The amputation would have occurred, even in the absence of any negligence by Vener, because Jorgenson believed that he had already achieved the better outcome.
[ .] No matter the approach used for determining proximate cause, one common thread remains: a plaintiff must demonstrate harm by showing the doctor's negligence deprived him of a chance at a better result. Jorgenson's lost chance cannot be valued because of his own testimony that the ultimate injury was not a lost chance of a better outcome, but a lost chance of a different outcome. Jorgenson cites no case law supporting his assertion that a loss of chance claim is compensable without any proof of harm. See State v. Pellegrino, 1998 SD 39, , 577 NW2d 590, 599 (stating failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and issue is deemed waived) (citation omitted). Accordingly, where the element of proximate cause has not been
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