In King v. St. Barnabas Hospital, a Riker's Island correctional officer, Thorrie Murray, was playing a basketball game at the facility's gym when he suffered a cardiac arrest. When medical personnel arrived, he was unconscious and not breathing. After using the "quick look" function on the defibrillator to see whether there was electrical activity in the heart and finding a mixture of asystole and some V-fib, the defendants shocked Officer Murray in an attempt to restore his heartbeat. Those efforts, as well as others, however, were unsuccessful.
Officer Murray's estate commenced this medical malpractice action alleging that it was a departure from emergency protocols to defibrilate the decedent while he was in asystole and in failing to timely administer epinephrine and atropine. The defendants moved for summary judgment arguing that the defendants acted within accepted standards of practice and that nothing they did had a detrimental effect on the outcome. The trial court agreed and granted the motion. The court noted that even under "the best circumstances, plaintiff's expert cannot predict whether Officer Murray could have been saved or if cardiac function could have been restored." The court further found that the plaintiffs failed to offer any statistics of survival rates of patients in asystole or whether the administration of epinephrine or atropine increases the chances of survival. The First Department, however, reversed.
The Court held that New York permits claims for negligent resuscitation efforts to the extent the defendants departed from life support protocols and deprived the plaintiff of "any possibility of survival." According to the Court "[W]e cannot endorse a rule that would essentially absolve first responders of liability where they deviate from life support protocols. The very fact that advanced life support protocols exist for patients in an asystolic state means that adherence to the protocols afford a chance of reviving the patient, notwithstanding the grave nature of the condition. It necessarily follows that failure to follow the protocols reduces the chances of reviving the patient." Thus, even in the absence of the ability to quantify whether the defendants actions decreased the chances of survival, the Court held that the protocols raised a question of fact sufficient for the jury.
While the correctness of this decision is certainly an debatable issue, this case now presents an opportunity to face head-on a further issue that has long been lingering in "loss of chance" cases in New York. That issue is, whether damages in a loss of chance case should be limited to the percentage of the chance lost or whether the plaintiff should receive full damages? A further discussion of this issue is contained in an article we published, "Loss of Chance: Confusion in New York's Standard of Proof" (Nassau Lawyer, October 2007).