dissenting.
I dissent for the following reasons:
1. Adoption of the lost chance of survival doctrine will yield erroneous awards to plaintiffs. .
Rather than avoiding apparent inequities, the adoption of the lost chance doctrine will create greater inequities.
If the lost chance doctrine is adopted for Indiana, physicians will be the only professional malpractice defendants subjected to liability in the absence of proof that their alleged negligence probably caused the injury.
An example of how the doctrine of lost chance will result in erroneous and inequitable outcomes was provided by the Court of Appeals of Maryland:
Because loss of chanee of recovery is based on statistical probabilities, it might be appropriate to examine the statistical probabilities of achieving a 'just' result with loss of chance damages....
To compare the two rules, assume a hypothetical group of 99 cancer patients, each of whom would have had a 33%% chanee of survival. Each received negligent medical care, and all 99 died. Traditional tort law would deny recovery in all 99 cases because each patient had less than a 50% chance of recovery and the probable cause of death was the pre-exist-ing cancer not the negligence. Statistically, had all 99 received proper treatment, 383 would have lived and 66 would have died; so the traditional rule would have statistically produced 33 errors by denying recovery to all 99.
The loss of chance rule would allow all 99 patients to recover, but each would recover 334% of the normal value of the case. Again, with proper care 83 patients would have survived. Thus, the 83 patients who statistically would have survived with proper care would receive only one-third of the appropriate recovery, while the 66 patients who died as a result of the pre-existing condition, not the negligence, would be overcompensated by one-third. The loss of chance rule would have produced errors in all 99 cases.
Fennell v. Southern Maryland Hospital (1990), 320 Md. 776, 580 A.2d 206, 212-13 (declining to adopt the doctrine of loss of chanee of survival).
A second inequitable outcome resulting from the adoption of this doctrine is that physicians will be the only professional malpractice defendants subjected to liability in the absence of proof that their alleged negligence probably caused the injury. See Gooding v. University Hosp. Bldg., Inc. (1984), Fla., 445 So.2d 1015, 1020. The number of medical malpractice claims consequently will increase, thereby escalating malpractice insurance premiums and consumer costs. Also contributing to the increased cost of medical care will be the unnecessary treatment and testing inevitably performed when physicians are compelled to practice medicine defensively. Defensive medicine does not cure; it kills the availability of medical treatment for others. It is unreasonably expensive.
Lastly, today's holding threatens to erode traditional principles of tort law in ways other than those which are readily apparent:
[Ilf a doctor negligently treats a person with a 40% chance of recovery and the doctor's negligence reduces the patient's chanee of recovery to only 10%, whether the patient lives or dies, the doctor's negli-genee cost the patient a 80% loss of chance of survival. If the patient dies, the probable cause of death was the pre-existing disease or injury; it is unlikely that the negligence caused the death. If the patient lives, the negligence clearly did not cause the death. In both scenarios, there was negligence resulting in a 380% loss of chanee of survival. If courts are going to *1362allow damages solely for the loss of chance of survival, logically there ought to be recovery for loss of chance regardless of whether the patient succumbs to the unrelated pre-existing medical problem or miraculously recovers despite the negligence and unfavorable odds.
Since loss of chance damages are only permitted when the patient dies, it is also arguable that, when we strip away the rhetoric, damages are really being awarded for the possibility that the negligence was a cause of the death.
Fennell, supra, 580 A.2d at 213. Mere possibilities are insufficient to support an award of damages under Indiana law. Watson v. Medical Emergency Services (1989), Ind.App., 532 N.E.2d 1191, 1195, reh. denied, trans. denied.
Because it is undisputed that Norma Sparkman would have probably died even in the absence of negligence, I would reverse and instruct the trial court to grant Dr. Mayhue's motion for summary judgment.