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Jorgenson v. Vener2/6/2002
satisfied, the element of damages cannot be reached.
[ .] Because Jorgenson testified that the earlier discovery of his infection would not have changed his course of action, I would hold that there can be no recovery for the lost chance in this case. As in McDaniel, Jorgenson has merely shown that the doctor's alleged negligence caused the loss of a chance to consider the two-year treatment to try and save his leg at a possible success rate of seventy-five percent as opposed to sixty percent. He has not shown the loss of a chance to actually obtain the treatment. Indeed, he testified that obtaining the treatment was not the better result for him. I would not hold that a plaintiff be required to undergo the treatment in order to recover on a loss of chance claim, only that he deem it a possibility at a better outcome and consider it accordingly.
[ .] It is indisputable that our Constitution provides a litigant the right to have factual issues tried by a jury. But where there is no issue of fact, there is no right to a jury trial. Here, there was no question of fact left for a jury to consider, as Jorgenson's own testimony has already given the answer. Jorgenson's deposition testimony, that he would still choose amputation given an increased fifteen percent chance of success, factually negates the possibility of a better outcome and thereby precludes his recovery on a loss of chance claim. Simply put, Jorgenson testified his way out of court. Therefore, I would affirm the trial court's decision.
KONENKAMP, Justice (dissenting).
[ .] With today's ruling, medical patients can refuse remedial treatment and still maintain a viable malpractice suit against their doctors for failing to provide that treatment. If that seems absurd, then read the majority opinion again, for that is exactly what it holds. The plaintiff here can both disclaim a medical remedy and sue for having been denied it. Thus, a patient's own decisions about courses of treatment become wholly irrelevant. The doctor must pay for not giving a patient a choice the patient would never have chosen. The expansion of liability here is breathtaking. Medical malpractice law now becomes a Pickwickian parlor game. There will be compensation for loss, even if only illusory, a product of statistics, conjured up and displayed in so many pixels. All a jury needs to do is count them, and, of course, add dollar signs.
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