By Iman Aziz*

I. Introduction

Stephanie Wadsworth had every reason to believe her battle with breast cancer was behind her.[1] After being diagnosed in 2006, Ms. Wadsworth underwent a grueling course of treatment, including a mastectomy, chemotherapy, and radiation.[2] By 2008, follow-up scans confirmed what she had hoped for, no sign of cancer.[3] Yet, in 2013, a routine positron emission tomography (“PET”)/computerized tomography (“CT”) scan revealed a suspicious lesion on her clavicle.[4] Her oncologist reviewed the scan but decided against informing Ms. Wadsworth or ordering any further tests.[5] Three years later, Ms. Wadsworth fell and injured her shoulder.[6] This fall resulted in a trip to the hospital, where tests confirmed the lesion had metastasized, marking the unfortunate return of her cancer.[7] Despite undergoing treatment, Ms. Wadsworth passed away in 2017.[8]

Her family sought justice, filing a wrongful death claim, but Maryland’s “all-or-nothing” approach to medical malpractice law offered no solace.[9] Currently, Maryland rejects the loss of chance doctrine.[10] Further, under the Wrongful Death statute, patients must prove that their survival odds were greater than fifty percent at the time of the alleged negligence to satisfy the “proximate causation” requirement of a negligence action.[11] Ms. Wadsworth’s odds were not high enough.[12] Her family’s claim was dismissed, not because Dr. Sharma’s inaction was insignificant, but because the law failed to recognize the value of the lost opportunity for earlier intervention, a chance that could have extended Ms. Wadsworth’s life by years.[13]

Ms. Wadsworth’s story is not unique.[14] Maryland’s “all-or-nothing” approach to medical malpractice claims disproportionately affects patients with terminal illnesses, particularly cancer patients whose survival odds often fall below the arbitrary fifty percent threshold at the time of the alleged negligence.[15] This strict standard ignores the profound human cost of lost chances to prolong life.[16]

This comment argues that Maryland’s refusal to adopt the loss of chance doctrine in cancer cases is outdated and unjust.[17] Part II begins with a historical background on the loss of chance doctrine in Maryland, highlighting its consistent rejection of the doctrine.[18] Part III examines the methods for calculating survivability, including the use of tools like the Cancer Staging Manual by the American Joint Committee on Cancer (“AJCC Staging Manual”).[19] Part IV includes a detailed problem analysis, identifying the ethical and legal shortcomings of Maryland’s “all-or-nothing” approach, including the effects of delayed diagnosis on negligence suits and the limitations of Maryland’s current framework.[20] Part V of this comment proposes a legislative solution to reform Maryland’s application of the loss of chance doctrine through an amendment to the Wrongful Death statute, allowing recovery based on an “increased risk of harm” standard, or by adopting a proportional damages system.[21] Finally, this comment concludes with a call to action for a more equitable legal standard in Part VI.[22]

II. Historical Development

A. Wrongful Death Action in Maryland

Maryland’s Wrongful Death Act (the “Act”), enacted in 1852, was a departure from the common law principle that a “personal action dies with the person.”[23] The Act allows certain beneficiaries to recover damages against a party whose wrongful act or neglect caused the decedent’s death, thereby creating and independent cause of action for the losses suffered by the decedent’s family.[24] At common law any actions by a person against another were terminated once the person passed away.[25] The Act was based on England’s Lord Campbell’s Act, which modified the same common law principle.[26] This Act was a pioneering legislative effort to compensate families for the untimely death of a loved one caused by the wrongful act of another.[27]

Today, wrongful death claims in Maryland are governed by Section 3-902 of the Courts and Judicial Proceedings Article, otherwise known as the Wrongful Death Statute (the “Statute”), which states that “[a]n action may be maintained against a person whose wrongful act causes the death of another.”[28] The Statute defines “wrongful act” broadly as any “act, neglect, or default” that would have entitled the decedent to damages had they survived.[29] The statutory framework ensures that surviving family members can seek justice and compensation for losses when a causal link is proved between the wrongful act and the resulting death.[30]

Judicial interpretations of the Statute have consistently emphasized the necessity of proximate causation.[31] For instance, in Weimer v. Hetrick, the Supreme Court of Maryland stated that “evidence must not leave the causal connection a matter of conjecture.”[32] The court held that “a plaintiff beneficiary in an action under the wrongful death statute must show by a preponderance of the evidence that the conduct of a defendant was negligent and that such negligence was a proximate cause of the death of the decedent.”[33] In Weimer, the plaintiffs, parents of a premature infant, alleged that the defendant physicians were negligent in their care and treatment of their son, Jason, who died shortly after his birth.[34] The mother, who had severe pre-eclampsia, agreed to deliver her baby via a cesarean section at thirty-two weeks, despite being told that her baby would likely not survive the birth.[35] The plaintiffs introduced expert testimony from Dr. Harkavy, a physician and neonatologist, stating that Dr. Weimer departed from the standard of care for physicians by making inadequate efforts to resuscitate the infant, using improper dosages of medication, prematurely removing the umbilical cord, failing to adequately monitor the infant, and more, ultimately decreasing the child’s odds of survival.[36] Dr. Harkavy further opined that the child would have survived with proper care.[37] The court, however, held that such claims require proof that negligence was the proximate cause of the death.[38] This decision reinforced the principle that proximate causation must be established as a matter of probability or reasonable certainty, not mere possibilities.[39]

B. The Loss of Chance Doctrine in Maryland

The loss of chance doctrine allows for recovery when a defendant’s negligent conduct reduces one’s chance of survival.[40] The loss of chance doctrine has been adopted in different jurisdictions with various approaches on its application.[41] Some jurisdictions allow for full recovery based on relaxed standards to establish causation where plaintiffs have established that the defendant’s negligence led to a less than fifty percent chance of recovery.[42] Other jurisdictions have kept the traditional approach to causation and apply loss of chance to the calculation of proportional damages.[43] While many jurisdictions have adopted the doctrine to try and bridge gaps under traditional causation approaches, Maryland has consistently rejected the doctrine.[44]

In Fennell v. Southern Maryland Hospital Center, the Supreme Court of Maryland, explicitly declined to adopt the loss of chance doctrine.[45] The court held that adopting the doctrine would result in “damages [that] are really being awarded for the possibility that the negligence was a cause of the death.”[46] The court further held that “damages must be proven by a preponderance of the evidence.”[47] The Supreme Court of Maryland believed that permitting loss of chance recovery is an issue that should be resolved by the legislature.[48]

The Supreme Court of Maryland reaffirmed its position in Wadsworth v. Sharma, where the court once again refused to extend Maryland law to include the loss of chance doctrine in a wrongful death action.[49] The Wadsworth court emphasized that Maryland law requires proof, by a preponderance of evidence, “that the defendant’s negligence proximately caused the death.”[50] Further, without evidence showing that the decedent had a greater than fifty percent chance of survival absent the alleged negligence, recovery is barred from the plaintiff.[51]

In addition to reaffirming its rejection of the loss of chance doctrine, the Wadsworth decision also analyzed the legislative history of Maryland’s Wrongful Death Statute.[52] The court noted that while the Maryland General Assembly has amended the Statute three times since its enactment, it has never altered the requirement of proximate causation or adopted the loss of chance doctrine.[53] The legislature has only amended the Statute to extend the statute of limitations, the period in which a plaintiff can bring suit.[54] This legislative inaction was interpreted as an implicit agreement with the court’s longstanding interpretation of the Statute.[55]

C. Relevance of the Loss of Chance Doctrine in Cancer Cases

In medical malpractice cases, the loss of chance doctrine “allows the plaintiff to recover if the plaintiff can prove that the defendant’s negligence caused the loss of chance of a better outcome, including survival.”[56] Moreover, in cases where the patient dies from cancer, absent a showing that the patient had survival odds greater than fifty percent at the time of the alleged negligent act, the plaintiff is barred from recovery.[57] Additionally, if a patient’s chance of survival was less than fifty percent at the time of the alleged negligence, the plaintiff would be unable to prove by a preponderance of the evidence that the negligence was the proximate cause of the resulting death or injury.[58] The rationale behind barring recovery for these plaintiffs is that when a patient already had a less than fifty percent chance of survival at the time of the alleged negligence, “it was probably the pre-existing medical condition, not the negligence, that killed the patient.”[59]

This reasoning reflects Maryland’s adherence to a rigid causation framework that demands clear proof of probability rather than possibility.[60] Maryland, unlike some jurisdictions, applies a strict two-part test in determining causation in cancer malpractice cases.[61] First, the patient must prove, at the time the negligence occurred, they had a greater than fifty percent chance of survival.[62] Second, they must demonstrate that by the time of diagnosis, this chance had diminished below fifty percent, effectively rendering the condition incurable.[63] This “curable to incurable” framework presents a narrow window of recoverability and is often impractical given the evolving and interpretative nature of the survivability assessments.[64]

III. Calculating Survivability in Cancer Cases

A. The Role of the AJCC Staging Manual

One of the methods in measuring survivability in cancer cases is through the AJCC Staging Manual.[65] This manual serves as the standard reference for cancer survival rates based on “how much cancer is in the body and where it is located.”[66] Cancer Staging Systems, like the manual, use the following four main factors to determine the stage of cancer: location of the tumor, size of the tumor, lymph node involvement, and whether the cancer has spread to other areas of the body or metastasized.[67] The most common staging system, the TNM system, is used by medical professionals to determine a patient’s prognosis and treatment options.[68] This system categorizes cancer into stages based on “extent of the tumor (T), extent of spread to the lymph nodes (N), and presence of metastasis (M).”[69]

The AJCC Staging Manual’s TNM system’s significance lies in its standardized approach, which facilitates consistent evaluation and communication among healthcare providers.[70] For example, a patient with Stage I cancer is expected to have a higher survival rate than a patient with Stage IV cancer.[71] However, this reliance on the staging system for survivability calculations raises questions about its accuracy in light of medical advancements, available treatments, and its use within the legal system for medical negligence cases.[72] Treatments, such as immunotherapy and targeted therapy, have dramatically improved outcomes for many cancers even in advanced stages, suggesting that survivability metrics tied strictly to staging may no longer accurately reflect a patient’s prognosis.[73]

While the AJCC Staging Manual system remains foundational, it is not treated as infallible or singular by providers.[74] The medical community does not treat any one system as the “bible” for prognosis.[75] The variation in clinical judgement and reliance on multiple tools reinforces that survivability assessments are inherently subject to interpretation and clinical experience.[76] This indicates that survivability thresholds should not be primarily used as dispositive legal cutoffs for recovery.[77]

B. Survival Metrics and Staging

The AJCC Staging Manual process categorizes cancers into stages I through IV based on data collected via the TNM system.[78] This classification has a significant impact on survival rates.[79] To clarify, survival rates decline as the stage progresses from Stage I, representing localized disease, to Stage IV, indicating widespread metastasis.[80]

Once a cancer stage is assigned at the time of diagnosis, it remains fixed throughout treatment regardless of its progression or response to treatment.[81] This “staging at diagnosis” approach provides a baseline for clinical decision-making but does not account for the dynamic nature of cancer progression and treatment response.[82] Consequently, the staging system does not reflect improvements in survival that may occur due to innovative treatments or early intervention.[83]

As described by the American College of Surgeons, the staging system provides critical insights into cancer management by standardizing the language used to describe cancer progression.[84] The purpose of this system is to ensure consistent communication among medical professionals globally.[85] However, this system does not account for other critical factors, such as the impact of delayed diagnosis, which can significantly alter patient survivability outcomes by allowing cancers to progress to more advanced stages prior to treatment.[86] The system also does not account for changes in survival rates based on newer treatments available.[87] These delays, often due to medical negligence, and lack of consistent updates based on new technologies and treatments, are not reflected in survivability calculations, despite their profound impact on prognosis.[88]

C. Beyond AJCC: The Variable Nature of Survivability Assessments

Although the AJCC Staging Manual system remains a cornerstone in cancer prognosis, it is not the sole authority used by medical professionals.[89] Providers often rely on a combination of resources such as the American Cancer Society (“ACS”), the National Cancer Institute (“NCI”), and peer-reviewed clinical literature to determine survivability estimates.[90] These sources offer broader insights including, cancer-specific survival data, treatment responses by population group, and survival metrics based on tumor biology and genetics.[91] Oncologists, radiologists, and other specialists use these tools in conjunction with their clinical judgement when advising patients and forming treatment plans.[92]

This multidimensional approach underscores the fact that survivability calculations are not universally standardized.[93] They are often based on a combination of evidence-based estimates, evolving medical data, and individual patient circumstances.[94] Additionally, online medical platforms like “UpToDate” are frequently used by healthcare professionals as reliable, real-time decision making aids, further supporting the notion that survivability assessments are inherently interpretative and variable.[95]

D. The Impact of Medical Advancements on Survivability

Medical Advancements have significantly altered traditional survivability metrics.[96] Treatments such as immunotherapy, precision medicine, and advanced imaging technologies have enhanced early detection and treatment outcomes.[97] For example, Chimeric antigen receptor-T cell therapy (“CAR-T cell therapy”) is used in the treatment of lymphoma, leukemia, and myelomas with remission rates of up to eighty percent.[98] Advances in imaging technologies such as, PET scans and magnetic resonance imaging (“MRI”) have increased the accuracy of early cancer detection.[99] These innovations challenge the fairness of primarily basing negligence claims strictly on outdated survival metrics tied to staging.[100]

While the AJCC Staging Manual remains a cornerstone of cancer prognosis, its application in calculating survivability must adapt to reflect modern medical advancements.[101] Courts and policymakers should consider these changes and deviate from their current reliance on survivability assessments in medical malpractice cases to ensure fairness and accuracy in negligence claims involving cancer patients.[102]

IV. ISSUE: Maryland’s “All-or-Nothing” Approach

Maryland law fails to adequately protect individuals who experience medical negligence that reduces their chances of survival, particularly when such chances are below fifty percent.[103] By rigidly adhering to an “all-or-nothing” standard of proximate causation, Maryland law denies recovery to plaintiffs based on arbitrary statistical thresholds rather than the actual harm suffered by patients.[104] This approach ignores medical advancements and the effect of delayed diagnoses, while also shielding negligent providers from accountability.[105]

A. Delayed Diagnosis and Negligence

Delayed cancer diagnoses can significantly worsen patient outcomes by allowing diseases to progress to more advanced stages.[106] Under Maryland’s current loss of chance framework, patients whose cancer progresses due to diagnostic delays may face limited legal recourse, as survivability is closely tied to the stage at which the cancer is ultimately diagnosed, not when it should have been detected by medical professionals.[107] This disconnect means that even if earlier detection could have led to a higher survival rate, the stage assigned reflects the delayed diagnosis, resulting in lower survival odds and reducing the patient’s ability to bring a claim.[108] This is especially important because currently, Maryland law bars wrongful death actions where a patient had less than a fifty percent chance of survival at the time of the alleged negligence.[109]

In defending delayed diagnosis cases, doctors often use tumor growth rate modeling to argue that the patient’s survival odds were already below fifty percent at the time the diagnosis should have been made by the doctor.[110] This approach involves estimating how fast the tumor grew, then working backward from the size at diagnosis to suggest that earlier detection would not have improved the prognosis.[111]

This type of modeling is speculative, relying on generalized data that fails to account for individual differences in tumor biology and growth patterns.[112] This highlights a core problem with Maryland’s rigid fifty percent threshold that it ignores real harm caused by delayed diagnosis by focusing on speculative numbers.[113]

As a result, patients with delayed diagnoses may lose the opportunity to seek justice, even if negligence played a role in worsening their prognosis.[114] In the case of Loudin v. Radiology & Imaging Services, Inc., the plaintiff’s breast cancer progressed from Stage I to Stage IIA due to a delayed diagnosis, which decreased her chance of survival.[115] Although this case did not explicitly confirm the plaintiff had a greater than fifty percent chance of survival at diagnosis, it highlights that regardless of the survivability calculation, evidence can be shown to prove a physician’s negligence.[116] Such evidence may include a comparison of the tumor size at the time the cancer should have been diagnosed versus when the physician actually diagnosed the tumor.[117] Moreover, while Loudin concerns Ohio law, this case highlights how proximate causation can be established through evidence of a delayed diagnosis caused by the physician, regardless of the calculated chance of survival at the time of diagnosis.[118]

B. Limitations of the Fifty Percent Threshold

Maryland’s strict adherence to a fifty percent threshold for survival odds presents significant limitations.[119] Under this approach, slight differences, such as a forty percent versus a fifty-one percent chance of survival, can determine whether plaintiffs are eligible for recovery.[120] It is not fair that a patient with a fifty-one percent chance of survival at the time of the alleged negligence has a valid claim, but a patient with a forty-nine percent chance of survival is barred from recovery.[121] This “all-or-nothing” rule is rooted in the state’s rejection of the loss of chance doctrine, as reaffirmed in Wadsworth.[122] In Wadsworth, the court held that Maryland law does not recognize claims where medical negligence merely diminishes the likelihood of a better outcome.[123] Instead, plaintiffs must demonstrate by a preponderance of the evidence that the negligence proximately caused the harm, a burden that is insurmountable when survival chances are inherently low.[124]

This rigid interpretation becomes even more troubling when marginal differences, such as between a fifty-one percent and a forty-nine percent chance of survival, determine the validity of a claim.[125] A patient who deteriorates from a sixty percent chance of survival to forty-five percent due to a delayed diagnosis has still suffered a medically significant loss, yet is barred from recovery under Maryland’s current doctrine.[126]

C. Ethical and Legal Concerns with Maryland’s Current Approach

Denying recovery based on arbitrary survival percentages raises ethical issues.[127] This approach invalidates patients’ grievances and leaves them without recourse, exacerbating their suffering.[128] By barring claims for those below this arbitrary threshold, the law fails to hold negligent practitioners accountable, which erodes the public’s trust in both the healthcare and legal systems.[129]

This disproportionately impacts vulnerable populations, such as low-income patients and racial minorities, who face systemic barriers to early detection and care.[130] For instance, Black women are more likely to be diagnosed with advanced breast cancer, yet Maryland’s framework may deny them recovery, thus perpetuating inequities.[131]

Further, this rigid system ignores advancements in medical treatments such as CAR-T cell therapy and mRNA vaccines, which can improve survival odds over time.[132] By clinging to outdated survivability metrics, Maryland law contradicts modern medical ethics, which prioritize individualized care and equitable treatment.[133] Ultimately, this “all-or-nothing” approach undermines the principle of corrective justice by failing to provide a remedy for harm caused by negligence.[134]

Regardless of a patient’s survival odds, a doctor’s negligence can and should be proven through methods that establish proximate causation beyond the rigid fifty percent threshold.[135] Proximate causation can be demonstrated by showing how a doctor’s failure to meet the standard of care directly impacted the patient’s condition or accelerated the progression of their illness.[136] For example, expert testimony can identify deviations from the standard of care, such as failing to diagnose a condition or provide timely treatment, and how those actions or inactions contributed to measurable harm.[137]

Maryland’s current approach, which attributes the patient’s poor outcome solely to their illness when survival odds are below fifty percent at the time of the alleged negligence, ignores these critical considerations.[138] By focusing solely on statistical survival odds, the law disregards other evidence that could illustrate how a physician’s negligence exacerbated the patient’s conditions or reduced their quality of life.[139] A more holistic approach would ensure that negligence is addressed and remedied, regardless of survival probability, aligning with the principles of justice and accountability.[140]

The current legal framework inadvertently incentivizes inaction.[141] If medical providers can escape liability simply by showing a patient had a low statistical chance of survival, even egregious negligence, such as ignoring abnormal scans or failing to communicate key findings, like in Wadsworth, can go unpunished.[142] This is not in the best interests of Maryland citizens or its healthcare community and undermines public trust in the medical and legal systems.[143]

D. Advancements in Cancer Treatments

Recent advancements in cancer treatments have significantly improved patient outcomes, challenging the traditional survivability metrics Maryland relies upon for medical malpractice claims.[144] Innovations such as immunotherapy, precision medicine, and targeted therapies have extended survival rates even for patients with late diagnoses, demonstrating that survival odds at the time of the alleged negligence should not be the sole determinant of a plaintiff’s ability to recover damages.[145]

For example, CAR-T cell therapy has revolutionized treatment for certain cancers, including leukemia and lymphoma, by training the patient’s immune system to attack cancer cells.[146] With this therapy about eighty percent of patients have experienced remission.[147] Similarly, mRNA cancer vaccines, custom made to fit the genetics of an individual’s tumor, are now being developed to treat various types of cancer.[148] Moreover, developments in early cancer detection methods, including artificial intelligence-enhanced imaging and liquid biopsy technology, allow for early intervention and improved survival rates.[149] Techniques such as PET and MRI scans now provide more accurate diagnoses at earlier stages.[150] These advancements mean patients diagnosed with late-stage cancer can have better prognoses compared to traditional survivability calculations.[151]

Maryland’s rigid reliance on the fifty percent survival threshold ignores the evolving nature of cancer treatment and the increasing availability of life-extending treatments.[152] The legal system must adapt to reflect these advancements rather than continue to rely on outdated models.[153] By disregarding the potential for treatments and breakthroughs, Maryland law does not provide justice for all victims of medical negligence.[154]

E. Holding Negligent Practitioners Accountable

Maryland’s failure to recognize the loss of chance doctrine in medical malpractice cases shields negligent healthcare providers from accountability and effectively denies access to justice for many patients harmed by negligent healthcare providers.[155] By imposing an arbitrary survival threshold, the law excuses medical professionals whose errors deprive patients of effective treatments and bars many valid claims from even reaching court.[156] This lack of accountability not only harms patients, but also weakens trust in the healthcare and legal systems designed to protect them.[157]

Under the current framework, physicians who fail to diagnose or properly treat cancer in a timely manner can escape liability simply because their patients have a statistically lower chance of survival.[158] This approach ignores the fact that medical negligence, such as a failure to diagnose or a delay in treatment, can still cause measurable harm, even if a patient’s initial prognosis was poor.[159] In Wadsworth v. Sharma, despite knowing that Dr. Sharma reviewed an abnormal PET/CT scan showing the presence of cancer in 2013, the court declined to offer relief to the family because Ms. Wadsworth’s chance of survival at the time of diagnosis in 2016, was below fifty percent.[160] Maryland’s rejection of the loss of chance doctrine makes it difficult for patients in similar situations to hold providers accountable.[161]

Maryland’s strict adherence to survivability calculations fails to consider the real impact of medical negligence.[162] Even when a patient has a low chance of survival, the opportunity for an increased lifespan or alternative treatment options still holds value.[163] Other jurisdictions recognize this by allowing plaintiffs to recover damages for the reduction in their chance of survival, even if their survival odds were below fifty percent.[164]

To ensure accountability and fairness, Maryland should reform its legal approach by incorporating a proportional damages system or adopting an “increased risk of harm” standard.[165] Such reforms would align Maryland’s medical malpractice laws with modern medical advancements and ethical considerations while ensuring that negligent providers are held responsible for their actions.[166] Without these changes, Maryland’s current “all-or-nothing” adherence continues to deny justice to patients and families harmed by negligence.[167]

V. SOLUTION

Maryland’s Wrongful Death statute must be amended to recognize the loss of chance doctrine, allowing recovery even when a patient’s initial odds of survival are below fifty percent.[168] The current rigid threshold unjustly bars claims, ignoring the harm caused by delayed diagnoses and substandard care.[169] Maryland should adopt either an increased risk of harm standard, a proportional damages model, or both, ensuring accountability while balancing fairness.[170] Drawing from other states, these standards would ensure negligent practitioners are held accountable and patients are not left without recourse.[171]

A. Revised Doctrine Proposal

Maryland’s Wrongful Death statute allows for actions against a party “whose wrongful act causes the death of another.”[172] However, the statute does not explicitly address situations where negligence reduces a patient who already had less than a fifty percent chance of survival at the time of the alleged negligence.[173] This gap has left families of patients like Stephanie Wadsworth without recourse when medical negligence diminishes the chance of prolonged life but does not meet Maryland’s proximate causation standard.[174]

It is possible to amend the Maryland Wrongful Death statute by adopting a modified version of the loss of chance doctrine, without changing traditional causation principles.[175] Specifically, the statute should allow recovery for cases where negligence significantly diminishes the likelihood of a better outcome.[176] If the odds of survival are below fifty percent, additional evidence, such as expert testimony or a delayed diagnosis, can help establish proximate causation.[177] The amendment would address a critical shortfall in Maryland law, where proximate causation requires proof that negligence was a factor in causing a patient’s death, often leaving victims of negligence uncompensated.[178]

B. Support from Other Jurisdictions

i. Pennsylvania

Pennsylvania has been a leader in recognizing the loss of chance doctrine, particularly in medical malpractice cases.[179] Maryland should consider Pennsylvania’s “increased risk of harm” standard to protect patients whose chances of recovery or survival are substantially reduced by a physician’s negligence.[180] Under this approach, a plaintiff is not required to prove that the defendant’s negligence more likely than not caused the injury or death.[181] Instead, they must show that the negligence increased the risk of harm, and it is then left to the jury to decide whether that increased risk was a substantial factor in the outcome.[182] This standard shifts the focus away from arbitrary survival percentages and toward whether the provider’s actions made the patient’s situation worse, which is ultimately the heart of any malpractice claim.[183]

Hamil v. Bashline sets the foundation by allowing recovery under an “increased risk of harm” standard.[184] The court held that plaintiffs need only prove the negligence increased the risk of harm, leaving the jury to determine whether it caused the ultimate injury.[185] Additionally, in Sutherland v. Magilner, the court allowed recovery in cases involving delayed cancer diagnosis, even when the patient’s cancer was at an advanced stage, recognizing the role of negligence in diminishing survival chances.[186] As these two cases exemplify, Pennsylvania’s framework reflects a broader commitment to fairness by ensuring that patients are not denied recovery simply because their odds of survival were initially low.[187]

Pennsylvania’s model, reflected in its civil jury instructions, makes clear that plaintiffs need only demonstrate that a physician’s actions increased the risk of harm, not that it was the sole or direct cause.[188] The instruction states,

“Where the plaintiff presents expert testimony that the negligent act or failure to act or delay on the part of the defendant has increased the risk of harm to the plaintiff, this testimony, if found credible, provides a sufficient basis from which you may find that the negligence was a factual cause of the injuries sustained.”[189]

This instruction recognizes the reality of medical uncertainty, particularly in cancer cases where proving exact causation is often difficult.[190] It allows a jury to decide whether a provider’s negligence played a substantial role in worsening a patient’s outcome, thus providing a far more just approach than Maryland’s current fifty percent threshold.[191]

ii. Virginia

Virginia courts also support recovery for lost chances, emphasizing the importance of accountability in Hicks v. United States.[192] In this case, the court held that even a small chance of survival destroyed by negligence warrants recovery, recognizing that such losses represent tangible harm.[193] Similarly, Wagoner v. Commonwealth expanded this principle by confirming plaintiffs could recover damages even if the patient’s survival odds were below fifty percent, provided the negligence destroyed a substantial possibility of survival.[194] Virginia’s approach underscores the ethical importance of holding medical professionals accountable for their actions, fostering trust in the healthcare system, while providing justice to victims of negligence.[195]

iii. New Jersey

New Jersey employs a nuanced approach to loss of chance claims, emphasizing proportional accountability.[196] In Scafidi v. Seiler, the court established a proportional model, limiting recovery to the value of the loss chance directly attributable to negligence.[197] For example, if a defendant is responsible for a fifty percent loss of chance of survival, and the total damages amount to one million dollars, the defendant would owe five hundred thousand dollars.[198] This model balances the interests of plaintiffs and defendants by ensuring fair compensation without overburdening medical professionals.[199] Additionally, in Evers v. Dollinger, the court allowed recovery for patients with less than a fifty percent chance of survival, particularly in cases involving a delayed cancer diagnosis.[200] Moreover, Verdicchio v. Ricca emphasized the substantial factor test, recognizing that even a diminished chance of survival has intrinsic value.[201]

iv. New York

New York has recognized the significance of the loss of chance in medical malpractice cases under specific circumstances.[202] In Clune v. Moore, the court allowed recovery where negligence deprived the patient of a substantial possibility for a better outcome, emphasizing the importance of recognizing incremental harms.[203] Likewise, in Buffolino v. Lieberman, the court affirmed that patients could recover for the deprivation of a substantial chance for a cure, even when facing advanced-stage cancer.[204] These cases highlight New York’s willingness to hold medical practitioners accountable for negligence that diminishes opportunities for recovery, providing an example of how a more inclusive loss of chance doctrine can operate effectively.[205]

v. Take-Away from Other Jurisdictions

Collectively, these jurisdictions demonstrate that adopting a modified loss of chance doctrine can balance fairness and accountability.[206] By adopting the approaches used in other jurisdictions and reducing reliance on arbitrary thresholds, like a fifty percent survival rate, Maryland may provide justice for victims of medical negligence while encouraging higher standards of care in the medical profession.[207]

C. Proposed Statutory Changes

To address these shortcomings, Section 3-902 of the Maryland Wrongful Death Statute should be amended to include the following provisions:

 

1. Explicit Recognition of Loss of Chance: The Statute should explicitly allow recovery when negligence diminishes a meaningful chance of survival, even if initial odds were below fifty percent at the time of the alleged negligence.[208] This change would ensure accountability for cases where substantial opportunities for recovery are lost due to negligence.[209]

(2) “Increased Risk of Harm” Standard: Maryland should adopt Pennsylvania’s “increased risk of harm” standard, which could contribute to establishing proximate causation by allowing plaintiffs to demonstrate that negligence increased the risk of harm, leaving causation determinations to the jury.[210]

The amendments should explicitly extend the loss of chance doctrine to wrongful death claims under Section 3-902, ensuring families can recover damages when negligence significantly diminishes survival chances.[211]

VI. Conclusion

Maryland’s rigid “all-or-nothing” approach to medical malpractice claims fails to reflect the realities of modern cancer care and the ethical standards of justice.[212] By requiring survival odds above fifty percent at the time of the alleged negligence, the current framework unfairly denies justice and compensation to patients whose chances of prolonged life are significantly diminished by medical negligence.[213] This arbitrary threshold fails to account for the reality that even a slight chance of survival or prolonged life holds immense value for patients and their families.[214]

Moreover, this approach disproportionately harms vulnerable populations, such as low-income individuals and racial minorities, who face systemic barriers to early detection and quality care.[215] The law, as it stands, perpetuates inequities and leaves patients without recourse in situations where negligence demonstrably worsened their prognosis.[216]

Advancements in cancer treatment, such as immunotherapy, targeted therapy, and precision medicine, have dramatically improved survivability, even in advanced cases.[217] These innovations highlight the inadequacy of Maryland’s outdated framework, which relies on static survival metrics tied to the stage of diagnosis rather than the availability of other forms of evidence to prove a physician’s negligence and establish proximate causation.[218] By rejecting the loss of chance doctrine, Maryland law disregards critical evidence that could demonstrate how a physician’s failure to meet the standard of care directly impacted a patient’s condition.[219] This rigid approach not only denies justice to victims of medical negligence, it also erodes the public’s trust in the healthcare and legal systems.[220] Aligning legal practice with contemporary medical progress and ethical considerations is essential to address these shortcomings and ensure fair treatment for all patients, regardless of their statistical odds of survival.[221]

Reforming Maryland’s approach to medical malpractice law by adopting the loss of chance would restore fairness and accountability in cases where negligence diminishes a patient’s chances of survival.[222] Amending the Wrongful Death Statute to permit recovery for patients with survival odds below fifty percent at the time of the alleged negligence would provide a legal framework that recognizes the intrinsic value of every opportunity for survival and holds negligent practitioners accountable.[223] Such a change would ensure that Maryland law reflects modern medical advancements, corrects inequities in patient outcomes, and upholds legal and constitutional principles such as redressing grievances.[224] By enacting these reforms, Maryland can protect its citizens, strengthen its legal system, and set a precedent for balancing justice with medical innovation.[225] Maryland’s time to act is not only necessary, but overdue.[226]

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*   Iman Aziz: J.D. Candidate, May 2026, the University of Baltimore School of Law; B.S., 2021, Virginia Commonwealth University. I would like to thank my faculty advisor, Professor Scott Kurlander, for his thoughtful guidance and unwavering support throughout the development of this Comment. His insight into medical malpractice law and policy reform was instrumental in shaping the arguments presented in this piece. I would also like to thank the University of Baltimore Law Forum editorial board and staff for their dedication and diligence in preparing this Comment for publication, as well as my family and friends for their constant encouragement throughout law school and the writing process.

[1]   Wadsworth v. Sharma, 278 A.3d 1269, 1273–74 (Md. 2022).

[2]   Id.

[3]   Id. at 1273.

[4]   Id.

[5]   Id.

[6]   Id.

[7]   Wadsworth, 278 A.3d at 1273.

[8]   Id.

[9]   Id. at 1274, 1285 (explaining that under Maryland’s “all-or-nothing” approach, plaintiffs whose chances of survival are below fifty percent at the time of the alleged negligence are barred from recovery because proximate cause cannot be established by a preponderance of the evidence).

[10] Id. at 1273, 1285 (explaining that the “loss of chance” doctrine allows recovery when a defendant’s negligence deprives a patient of a substantial possibility of achieving a better outcome, even if the likelihood of survival is less than fifty percent).

[11] Id. at 1284-85; see Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) (West 2024).

[12] Id. (explaining that Ms. Wadsworth did not have a greater than fifty percent chance of survival prior to the alleged act of negligence).

[13] See Wadsworth, 278 A.3d at 1284-85 (Md. 2022) (holding that Ms. Wadsworth’s family could not recover because they had not established that her chance of survival exceeded fifty percent, even though her oncologist’s failure to disclose a suspicious lesion deprived her of the opportunity for earlier intervention that could have prolonged her life).

[14] Compare Weimer v. Hetrick, 525 A.2d 643, 650 (Md. 1987) (rejecting the loss of chance doctrine and showing that proximate causation for negligence cannot be established where the decedent had a less than fifty percent chance of survival), with Fennell v. S. Md. Hosp. Ctr., 580 A.2d 206, 216-17 (Md. 1990) (reaffirming Weimer and refusing to recognize loss of chance recovery in a survival action where the decedent’s chance of survival, prior to a negligent act, was below fifty percent).

[15] Compare Weimer, 525 A.2d at 650 (rejecting recovery where the parents of a premature infant who died hours after birth failed to prove that negligent resuscitation, rather than prematurity, more likely than not caused the infant’s death, thereby declining to recognize loss of chance recovery), with Fennell, 580 A.2d at 216-17 (declining to adopt the loss of chance doctrine where a hospital’s negligent delay in treating a patient suffering from bacterial meningitis eliminated her forty percent chance of survival, but recovery was barred because the plaintiffs could not establish that the decedent had a greater than fifty percent chance of survival).

[16] See Weimer, 525 A.2d at 650; Fennell, 580 A.2d at 216-17 (illustrating how Maryland’s all-or-nothing approach barred recovery in both cases, where the parents of a premature infant in Weimer could not prove that negligent resuscitation more likely than not caused death, and where the hospital’s delay in treating a meningitis patient in Fennell eliminated her forty percent chance of survival because her likelihood of survival did not exceed fifty percent).

[17] See infra Parts II-VI.

[18] See infra Part II.

[19] See infra Part III.

[20] See infra Part IV.

[21] See infra Part V.

[22] See infra Part VI.

[23] Wadsworth v. Sharma, 278 A.3d 1269, 1272 (Md. 2022).

[24] Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) (West 2024).

[25] Wadsworth, 278 A.3d at 1272.

[26] Id. at 1276 (citing Lord Campbell’s Act (1846) (Eng.)).

[27] Id.

[28] Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) (West 2024).

[29] Id. § 3-901(e).

[30] Id. § 3-902(a).

[31] Wadsworth v. Sharma, 278 A.3d 1269, 1273, 1278 (Md. 2022) (explaining that to satisfy proximate cause, the wrongful act or omission must be “(1) a cause in fact, and (2) a legally cognizable cause” of the injury).

[32] Weimer v. Hetrick, 525 A.2d 643, 648 (Md. 1987) (quoting 30 Am. Juris. 2d Evidence § 1121, at 288-89 (2025)) (holding that the parents of a premature infant who died shortly after birth could not prove proximate causation because, under Maryland’s fifty percent rule, the infant’s fragile condition made it more likely that her death resulted from natural complications rather than the doctor’s negligence).

[33] Id. at 652 (emphasis added).

[34] Id. at 644.

[35] Id. at 644-45 (describing the mother’s hospital stay and events leading toward delivery of her child via a cesarean section).

[36] See id. at 645 (describing Dr. Harkavy’s expert testimony explaining how Dr. Weimer deviated from the standard of care).

[37] Id. (“I can tell you that at the birth weight with an Apgar of two that the baby’s survival chances would still be considered good . . . the likelihood of survival still that we’re talking about is 80% to 90%.”).

[38] Weimer, 525 A.2d at 652 (denying recovery because the plaintiffs could not show that the doctor’s negligence, rather than the infant’s fragile condition and low chance of survival, more likely than not caused her death).

[39] Id. at 650 (quoting Pierce v. Johns-Manville Sales, 464 A.2d 1020, 1026 (Md. 1983)).

[40] Wadsworth v. Sharma, 278 A.3d 1269, 1280 (Md. 2022).

[41] Fennell v. S. Md. Hosp. Ctr., 580 A.2d 206, 210 (Md. 1990) (quoting the various approaches to the loss of chance doctrine described in Cooper v. Hartman, 533 A.2d 1294, 1297 (Md. 1987)).

[42] Id. at 210.

[43] Id.

[44] Wadsworth, 580 A.2d. at 1273 (“[I]n favor of maintaining well-settled proximate causation principles, thus leaving to the state legislature the decision of whether to alter the proximate causation standard. . . .”).

[45] Fennell, 580 A.2d at 211.

[46] Id. at 213.

[47] Id. at 214.

[48] See id. at 214-15 (explaining why the Maryland legislature is better equipped to resolve the issue of permitting loss of chance recovery).

[49] Wadsworth, 278 A.3d at 1285.

[50] Id.

[51] Id. at 1284-85.

[52] See id. at 1279-80 (explaining the legislative history behind Maryland’s Wrongful Death statute).

[53] Id. at 1279 (“In thirty-five years, the General Assembly has not passed legislation modifying our decision to reject the loss of chance doctrine. This inaction supports a conclusion that the General Assembly has acquiesced to our holdings. . . .”).

[54] Id.

[55] Wadsworth, 278 A.3d at 1279 (“This inaction supports a conclusion that the General Assembly has acquiesced to our holdings. . . .”).

[56] Id. at 1273.

[57] Id. at 1279-80.

[58] Id. at 1284-85 (“Without evidence to dispute that Ms. Wadsworth ad a greater than fifty percent chance of survival, Mr. Wadsworth, as a matter of law, cannot meet his burden to prove by a preponderance of the evidence that Dr. Sharma’s alleged negligence caused Ms. Wadsworth’s death.”).

[59] Fennell v. S. Md. Hosp. Ctr., 580 A.2d 206, 214 (Md. 1990).

[60] See id.(holding that the plaintiff could not recover where a hospital’s delay in treating a patient with bacterial meningitis eliminated her forty-percent chance of survival because the pre-existing condition was deemed the more probable cause of death); Weimer v. Hetrick, 525 A.2d 643, 650 (Md. 1987) (denying recovery where a premature infant’s low survival odds made it more likely that her fragile condition, rather than the doctor’s alleged negligence, caused her death).

[61] Fennell, 580 A.2d at 214; Weimer, 525 A.2d at 650.

[62] Fennell, 580 A.2d at 214; Weimer, 525 A.2d at 650.

[63] Fennell, 580 A.2d at 214; Weimer, 525 A.2d at 650.

[64] See Fennell, 580 A.2d at 214 (explaining Maryland’s two part test for establishing causation in cancer malpractice cases); Weimer, 525 A.2d at 650 (rejecting recovery where the decedent’s chance of survival was below fifty percent and explaining that Maryland’s rule limits recovery to cases where negligence reduces a patient’s odds from above fifty percent, which is “curable”, to below fifty percent, which is “incurable”); Fennell, 580 A.2d at 216-17 (applying the same reasoning and illustrating that once a patient’s survival odds fall below fifty percent, Maryland law deems the condition legally “incurable,” thereby precluding recovery).

[65] AJCC Cancer Staging Manual, Seventh Edition, Am. Joint Comm. on Cancer (2010), https://www.facs.org/media/j30havyf/ajcc_7thed_cancer_staging_manual.pdf (on file with the University of Baltimore Law Forum) [hereinafter AJCC Cancer Staging Manual] (providing a resource for medical professionals on methods of cancer staging that rank different survival levels).

[66] Id. at 23.

[67] Cancer Staging Systems, Am. Coll. of Surgeons, https://www.facs.org/quality-programs/cancer-programs/american-joint-committee-on-cancer/cancer-staging-systems/ (on file with the University of Baltimore Law Forum) (last visited Jan. 7, 2025).

[68] Id.

[69] Id.

[70] See generally AJCC Cancer Staging Manual, supra note 66 (providing a resource for medical professionals on methods of cancer staging that rank different survival levels).

[71] See id. at 5.

[72] See Anna Weiss et al., Validation Study of the American Joint Committee on Cancer Eighth Edition Prognostic Stage Compared with the Anatomic Stage in Breast Cancer, JAMA Oncology 203-09 (2017), https://jamanetwork.com/journals/jamaoncology/fullarticle/2665174 (on file with the University of Baltimore Law Forum) (explaining that the traditional TNM staging system does not account for biologic factors that contribute to accurate survival predictions in breast cancer). See generally Li-Ju Chen et. al., Survival Predictability Between the American Joint Committee on Cancer 8^th Edition Staging System and the Barcelona Clinic Liver Cancer Classification in Patients with Hepatocellular Carcinoma, The Oncologist (2021), https://theoncologist.onlinelibrary.wiley.com/doi/epdf/10.1002/onco.13535 (on file with the University of Baltimore Law Forum) (describing discrepancies in survival calculations between the AJCC TNM system and other systems, suggesting that other systems may be more accurate).

[73] See generally Cynthia Weiss, Mayo Clinic Q and A: 5 Advances in Cancer Treatment, Mayo Clinic News Network (Aug. 15, 2023), https://newsnetwork.mayoclinic.org/discussion/mayo-clinic-q-and-a-5-advances-in-cancer-treatment/ (on file with the University of Baltimore Law Forum) (describing advances in cancer treatments leading to higher survivability rates).

[74] See infra Section III.C (describing additional systems relied on by practitioners).

[75] See infra Section III.C (describing practitioner discretion when selecting a staging system to use).

[76] See infra Section III.C.

[77] Compare supra Part III (describing staging systems), with supra Part II (describing Maryland’s rejection of the loss of chance doctrine and its reliance on the 50% threshold).

[78] AJCC Cancer Staging Manual, supra note 66, at 5.

[79] See id. at 4 (providing a resource for medical professionals on methods of cancer staging that rank different survival levels, for example, Stage I indicates a higher chance of survival than State IV).

[80] Id. at 12.

[81] Id. at 10.

[82] See id. at 9 (describing that stages are assigned at diagnosis and rarely changed).

[83] See id. at 10 (describing that stages are assigned at diagnosis and rarely changed even as prognosis improves).

[84] AJCC Cancer Staging Manual, supra note 66, at 10.

[85] Id. at XIII.

[86] See id. at 8-12 (explaining that cancer staging is based primarily on the anatomic extent of disease: tumor size, lymph node involvement, and presence of metastases, and incorporates only limited nonanatomic prognostic factors, such as tumor grade, biomarkers, and patient age); Cancer Staging Systems, supra note 68 (describing the TNM system’s reliance on anatomical characteristics to classify disease severity).

[87] See AJCC Cancer Staging Manual, supra note 66, at 8-12 (describing the factors accounted for in cancer staging); Cancer Staging Systems, supra note 68 (describing the factors accounted for in cancer staging).

[88] See AJCC Cancer Staging Manual, supra note 66, at 8-12 (describing the factors accounted for in cancer staging with a notable absence for delayed diagnosis).

[89] See Cancer Staging, Am. Cancer Soc’y,   https://www.cancer.org/cancer/diagnosis-staging/staging.html (on file with the University of Baltimore Law Forum) (last revised Sept. 10, 2024) [hereinafter Cancer Staging I] (describing the AJCC system of cancer staging, derived from the AJCC Staging Manual); Cancer Staging, Nat’l Cancer Inst., https://www.cancer.gov/about-cancer/diagnosis-staging/staging (on file with the University of Baltimore Law Forum) (last reviewed Oct. 14, 2022) [hereinafter Cancer Staging II] (describing the AJCC cancer staging system).

[90] See sources cited supra note 90.

[91] See sources cited supra note 90.

[92] See generally sources cited supra note 90 (describing the staging systems relied upon by medical practitioners); AJCC Cancer Staging Manual, supra note 66 (describing the AJCC Staging Manual used by practitioners).

[93] See supra text accompanying notes 90-93 (explaining that multiple cancer staging systems exist for physicians to evaluate disease progression and treatment planning).

[94] See generally sources cited supra note 87, 90 (describing the staging systems relied upon by medical practitioners); AJCC Cancer Staging Manual, supra note 66 (describing the AJCC Staging Manual used by practitioners).

[95] Wolters Kluwer, UpToDate: Trusted, Evidence-based Solutions for Modern Healthcare, UpToDate, https://www.wolterskluwer.com/en/solutions/uptodate (on file with the University of Baltimore Law Forum) (last visited Mar. 28, 2025).

[96] Weiss, supra note 74.

[97] Id.

[98] Id.

[99]See Akhil Pulumati et al., Technological Advancements in Cancer Diagnostics: Improvements and Limitations, 6 Cancer Rep. 1, 2 (2021), https://onlinelibrary.wiley.com/doi/pdfdirect/10.1002/cnr2.1764 (on file with the University of Baltimore Law Forum) (describing advances in cancer diagnostic technologies).

[100] See generally sources cited supra notes 74, 100 (describing advances in cancer diagnostic technologies).

[101] See AJCC Cancer Staging Manual, supra note 66, at 8-12 (describing the factors accounted for in cancer staging).

[102] See infra Part VI.

[103] See supra Part II.

[104] See infra Section IV.B.

[105] See infra Part IV.

[106] See 3 Lee S. Goldsmith, Medical Malpractice Guide: Medical Issues § 42.01 (Matthew Bender, rev. ed., 2024) (describing the significant twenty percent reduction in survival rates for breast cancer as a result of delayed diagnosis); Loudin v. Radiology & Imaging Servs., 924 N.E.2d 433, 445-46 (Ohio Ct. App. 2009) (explaining the adverse effect of a delayed diagnosis of breast cancer).

[107] See supra Parts II–III.

[108] See AJCC Cancer Staging Manual, supra note 66, at 12 (describing that cancer staging is assigned at diagnosis and does not change and that lower staged cancers have better prognoses than higher staged cancers).

[109] See supra Part II.

[110] See P. Sasieni et al., Impact of MCED Screening Interval on Reduction in Late-Stage Cancer Diagnosis and Mortality, 32 Annals of Oncology S925, S925 (2021) (using tumor growth rate scenarios to model cancer screening outcomes, including effects of varying detection intervals on diagnosis stage and mortality risk, thereby supporting backward modeling of tumor progression); see generally John Ng et al., Development of a Model to Estimate the Association Between Delay in Cancer Treatment and Local Tumor Control and Risk of Metastases, 4 JAMA Network Open 1 (2021) (proposing a simplified mathematical model that uses tumor doubling times to estimate the impact of treatment delays on tumor control and metastasis formation, supporting retrospective inferences about tumor size and progression).

[111] See sources cited supra note 111.

[112] See generally Ng, supra note 111 (developing a simplified mathematical model of tumor growth and metastasis using generalized literature-based data and acknowledging that the model’s assumptions do not capture individual variability in tumor biology and growth patterns); Sasieni, supra note 111 (describing that studies used generalized statistics to be able to calculate tumor growth rate patterns).

[113] Compare Sasieni, supra note 111 (describing tumor growth rate models), with supra Part IV (describing the problem with Maryland’s rejection of the loss of chance doctrine), and supra Part II (describing how Maryland currently applies the loss of chance doctrine).

[114] See generally Wadsworth v. Sharma, 278 A.3d 1269, 1272-74 (Md. 2022) (showing a loss of chance claim where a delayed diagnosis adversely affected the patient, resulting in her untimely death, and barred the family from raising a claim in court because the patient did not possess a greater than fifty percent chance of survival at diagnosis).

[115] Loudin v. Radiology & Imaging Servs., 924 N.E.2d 433, 447 (Ohio Ct. App. 2009).

[116] Id.

[117] Id.

[118] Id.

[119] See supra Section II.C.

[120] See generally supra Part II (explaining Maryland’s rejection of the loss of chance doctrine and patients bar to recovery based on the fifty percent threshold); Weimer v. Hetrick, 525 A.2d 643 (Md. 1987) (rejecting the loss of chance doctrine and showing that proximate causation for negligence cannot be established where the decedent had a less than fifty percent chance of survival); Fennel v. S. Md. Hosp. Ctr., 580 A.2d 206 (Md. 1990) (rejecting the loss of chance doctrine and showing that proximate causation for negligence cannot be established where the decedent had a less than fifty percent chance of survival).

[121] See supra Section II.C.

[122] Wadsworth v. Sharma, 278 A.3d 1269, 1285 (Md. 2022).

[123] Id. at 1273.

[124] See Weimer, 525 A.2d 643 (denying recovery where a premature infant’s low survival odds made it more likely that her death resulted from her fragile condition rather than the doctor’s negligence, thus failing to satisfy proximate cause under Maryland’s fifty percent rule); Fennell, 580 A.2d 206 (reaffirming that recovery is barred when a patient’s initial chance of survival was less than fifty percent, as any causal link between negligence and death is deemed speculative).

[125] See generally Weimer, 525 A.2d 643 (rejecting the loss of chance doctrine and showing that proximate causation for negligence cannot be established where the decedent had a less than fifty percent chance of survival).

[126] See generally Weimer, 525 A.2d 643 (describing how a delayed diagnosis of a patient will result in a less than fifty percent survivability and bars a patient’s family from recovery); Fennell, 580 A.2d 206 (describing how a delayed diagnosis of a patient will result in a less than fifty percent survivability and bars a patient’s family from recovery); Wadsworth, 278 A.3d 1269 (describing how a delayed diagnosis as a result of Dr. Sharma’s negligence ignored because fifty percent survivability threshold not met, patient’s family barred from recovery).

[127] See infra Section IV.C.

[128] See generally Weimer, 525 A.2d 643 (plaintiffs denied recovery for failure to establish proximate causation); Fennell, 580 A.2d 206 (plaintiff denied recovery); Wadsworth, 278 A.3d 1269 (plaintiffs denied recovery).

[129] See generally Weimer, 525 A.2d 643 (plaintiffs denied recovery for failure to establish proximate causation); Fennell, 580 A.2d 206 (Plaintiff denied recovery); Wadsworth, 479 Md. 606 (plaintiffs denied recovery).

[130] Matthew Bender & Company, Inc., 3 Medical Malpractice Guide: Medical Issues § 42.01 (2024).

[131] Id.

[132] See generally Weiss, supra note 74 (describing advances in cancer treatments).

[133] Basil Varkey, Principles of Clinical Ethics and Their Application to Practice, 30 Med. Princ. and Prac. 17, 17-20 (2020) (explaining medical ethics).

[134] See U.S. Const. amend. I (guaranteeing individuals the right to seek redress for grievances through the government, a principle that underscores the need for access to remedies when negligence causes harm).

[135] But see Fennell v. S. Md. Hosp. Ctr., 580 A.2d 206, 213-15 (Md. 1990) (noting that physicians failed to promptly diagnose and treat the patient’s bacterial meningitis, which expert testimony indicated could have increased her forty-percent chance of survival, but holding that recovery was barred because Maryland’s fifty-percent rule rendered the causal link between negligence and death legally insufficient).

[136] Loudin v. Radiology & Imaging Servs., 924 N.E.2d 433, 447 (Ohio Ct. App. 2009).

[137] See id. at 447; Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04 (West 2019) (explaining the requirement of experts needed for medical malpractice claims in Maryland).

[138] See Fennell, 580 A.2d at 213-14.

[139] But see Loudin, 924 N.E.2d at 447.

[140] See generally Varkey, supra note 134 (explaining medical ethics).

[141] See infra text accompanying note 143 (describing that practitioners can escape liability because fifty percent threshold not met); infra Section IV.E (describing how the current system in Maryland fails to hold negligent practitioners accountable due to its reliance on the fifty percent threshold); see generally Weimer v. Hetrick, 525 A.2d 643 (Md. 1987) (rejecting the loss of chance doctrine and showing that proximate causation for negligence cannot be established where the decedent had a less than fifty percent chance of survival); Fennell, 580 A.2d 206 (rejecting the loss of chance doctrine and showing that proximate causation for negligence cannot be established where the decedent had a less than fifty percent chance of survival).

[142] See generally Wadsworth v. Sharma, 278 A.3d 1269 (Md. 2022) (holding that failure to disclose abnormal scans did not support recovery where patient could not show greater than fifty percent chance of survival).

[143] See infra Section IV.E (describing how the current system in Maryland fails to hold negligent practitioners accountable resulting in a lack of trust in the medical and legal systems).

[144] See infra notes 146-51.

[145] See Pulumati et al., supra note 100 (describing advances in cancer diagnostic technologies).

[146] Weiss, supra note 74 (describing Chimeric Antigen Receptor CAR-T Cell Therapy).

[147] Id.

[148] Id.

[149] Pulumati et al., supra note 100, at 1, 7, 10, 12 (describing advances in cancer diagnostic technologies).

[150] Id.

[151] See supra Section III.D.

[152] See supra Part IV.

[153] See infra Part V (explaining the approaches adopted by other jurisdictions that do not rely on survivability metrics).

[154] See generally Fennell v. S. Md. Hosp. Ctr., 580 A.2d 206 (Md. 1990) (denying recovery to plaintiff); Wadsworth v Sharma, 278 A.3d 1269 (Md. 2022) (denying recovery to plaintiffs); Weimer v. Hetrick, 525 A.2d 643 (Md. 1987) (denying recovery to plaintiffs for failure to establish proximate causation).

[155] See generally Wadswoth, 278 A.3d at 1273 (describing how a delayed diagnosis as a result of Dr. Sharma’s negligence ignored because 50% survivability threshold not met).

[156] See generally id. (holding that delayed-diagnosis negligence claim failed absent proof of greater than fifty percent chance of survival).

[157] See supra notes 127, 155 (patients without recourse, negligent physicians not held accountable).

[158] See generally Wadsworth, 278 A.3d 1269 (holding that negligence claim for delayed diagnosis failed absent proof of more-than-fifty percent chance of survival).

[159] See generally id. (holding that a negligence claim for delayed diagnosis failed absent proof of more-than-fifty percent chance of survival); Loudin v. Radiology & Imaging Servs., 924 N.E.2d 433, 436-38 (Ohio Ct. App. 2009) (identifying other potential evidence to establish medical negligence).

[160] Wadsworth, 278 A.3d at 1285.

[161] See generally Weimer v. Hetrick, 525 A.2d 643 (Md. 1987) (denying recovery for failure to establish proximate causation); Fennell v. S. Md. Hosp. Ctr., 580 A.2d 206 (Md. 1990) (denying recovery to plaintiff); Wadsworth, 278 A.3d 1269 (denying recovery to plaintiffs).

[162] See generally Wadsworth, 278 A.3d. at 1273-74, 1285-86 (affirming summary judgment for the defendant despite evidence that Dr. Sharma failed to follow up on an abnormal PET/CT scan showing cancer recurrence, which delayed diagnosis until metastasis and ultimately resulted in the patient’s death, reasoning that recovery was barred because her likelihood of survival at the time of the negligence did not exceed fifty percent under Maryland’s proximate cause standard).

[163] See Weiss, supra note 74 (describing advances in cancer treatments and increased survivability).

[164] See infra Part V.

[165] See infra Part V.

[166] See supra Section IV.C.

[167] See supra Part II.

[168] See infra Section V.A.

[169] Compare supra Part III (describing the method in which survivability is calculated and how it ignores delayed diagnoses and unjustly bars claims), with supra Part IV (describing that the reliance on an arbitrary survivability calculation, many are left with legal recourse and are barred from filing suit in court).

[170] See infra Sections V.B-C.

[171] See infra Section V.B.

[172] Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) (West 2024).

[173] See id. § 3-902 (showing the language of the statute and exclusion of survival rates).

[174] See Wadsworth v. Sharma, 278 A.3d 1269 (Md. 2022) (holding that Maryland rejects the loss-of-chance doctrine and denying recovery absent evidence that survival probability exceeded fifty percent).

[175] See supra Parts II, V (describing the loss of chance doctrine in Maryland and describing the problems its current state causes).

[176] See generally Loudin v. Radiology & Imaging Servs., 924 N.E.2d 433, 447 (Ohio Ct. App. 2009) (addressing medical malpractice and recognizing expert testimony that a radiologist’s year-long delay in diagnosing the plaintiff’s breast cancer allowed the disease to progress from Stage I to Stage IIA, thereby substantially reducing her likelihood of survival, and suggesting that such evidence may be sufficient to establish proximate cause).

[177] See generally id. (showing that expert testimony can establish causation and proposing that the factfinder should determine whether the alleged negligence caused the injury).

[178] See supra Part V (describing the problems with the current application of the loss of chance doctrine in Maryland).

[179] See infra Section V.B.i.

[180] See infra Section V.B.i.

[181] See infra Section V.B.i.

[182] See infra notes 184-87.

[183] Compare infra Section V.B.i (describing Pennsylvania’s increased risk of harm standard), with supra Part II (describing Maryland’s rejection of the loss of chance doctrine), and supra Part IV (describing the problems caused by Maryland’s reliance on the arbitrary 50% threshold).

[184] Hamil v. Bashline, 392 A.2d 1280, 1286-87 (Pa. 1978).

[185] Id.

[186] See Sutherlin v. Magilner, 2008 Phila. Ct. Com. Pl. LEXIS 260 (Nov. 21, 2008) (allowing medical negligence claim to proceed despite advanced stage of cancer).

[187] Compare id. (allowing medical negligence claim to proceed despite advanced stage of cancer), with supra Part II (describing Maryland’s rejection of cases where survivability below fifty percent), and supra Part V (describing the ethical issues raised by Maryland’s rejection of the loss of chance doctrine).

[188] See Hon. Thomas C. Branca et al., Pennsylvania Suggested Standard Civil Jury Instructions (Pa. Bar Inst. ed., 6th ed. 2024) (guiding the Pennsylvania’s judicial system to instruct jurors properly depending on the matter of the case).

[189] Id. (explaining the jury instruction for medical malpractice in proving factual cause).

[190] See id. (stating that Plaintiff’s need to prove that the defendant’s negligence only increased the risk of harm).

[191] Compare id. (defending the importance of a jury weighing the provider’s involvement on the causation of the patient’s health decline), with supra Part II (describing Maryland’s rejection of cases where survivability below fifty percent), and supra Part V (describing the ethical issues raised by Maryland’s rejection of the loss of chance doctrine).

[192] Hicks v. United States, 368 F.2d 626, 632-33 (4th Cir. 1966).

[193] Id. at 632.

[194] Wagoner v. Commonwealth, 756 S.E.2d 165, 177 (Va. Ct. App. 2014).

[195] Compare Wagoner, 756 S.E.2d at 177 (holding medical professionals accountable for their actions), with supra Part V (describing the distrust in the healthcare and legal system when patients are unable to redress grievances due to arbitrary survival statistics).

[196] See infra Section V.B.iii.

[197] Scafidi v. Seiler, 574 A.2d 398, 407-08 (N.J. 1990).

[198] See generally id. (describing the proportional damages model).

[199] See generally id. (implying fairness as the purpose of the proportional model of damages).

[200] Evers v. Dollinger, 471 A.2d 405, 409 (N.J. 1984).

[201] See generally Verdicchio v. Ricca, 843 A.2d 1042 (N.J. 2004) (describing the use of the substantial factor test where the defendant’s negligence occurs when a patient has a preexisting condition).

[202] See infra Section V.B.iv.

[203] Clune v. Moore, 38 N.Y.S.3d 852, 854 (N.Y. App. Div. 2016).

[204] Buffolino v. Lieberman, 924 N.Y.S.2d 307, 10-11 (N.Y. App. Div. 2011).

[205] See supra Section V.B.iv.

[206] Compare supra Section V.B.i. (explaining the different approaches to the application of the loss of chance doctrine in other jurisdictions), with supra Part V (describing the distrust in the healthcare and legal system when patients are unable to redress grievances due to arbitrary survival statistics).

[207] See supra Section V.B.

[208] See supra Sections V.B.i; Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) (West 2024).

[209] See supra Sections V.B.i.

[210] See supra Section V.B.i.

[211] See Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) (West 2024).

[212] See supra Part IV.

[213] See supra Parts II-IV.

[214] See supra Part IV.

[215] See supra Section IV.C.

[216] See supra Part IV.

[217] See supra Section IV.D.

[218] Compare Loudin v. Radiology & Imaging Servs., 924 N.E.2d 433, 436-38 (Ohio Ct. App. 2009) (showing other possible evidence to prove a doctor’s negligence), with supra Part II (describing Maryland’s rejection of cases where survivability below fifty percent), and supra Part V (describing the ethical issues raised by Maryland’s rejection of the loss of chance doctrine).

[219] Wadsworth v. Sharma, 278 A.3d 1269, 1278 (Md. 2022) (denying recovery where survivability was not shown to exceed fifty percent); see generally id. (finding evidence of negligence where the practitioner failed to identify a suspicious abnormality on the plaintiff’s mammogram, and expert testimony established that the year-long delay in diagnosis allowed her breast cancer to progress from Stage I to Stage IIA, significantly reducing her likelihood of survival).

[220] See supra Part IV.

[221] See supra Part V.

[222] Compare supra Part IV (describing the issues with Maryland’s current approach), with supra Part V (outlining the approaches adopted by other jurisdictions that Maryland should implement).

[223] See supra Part V.

[224] See supra Part V.

[225] See supra Part V.

[226] Compare supra Part II (describing Maryland’s treatment of the loss of chance doctrine, denying many patients from recovery), with supra Part IV (describing the issues with Maryland’s current approach), and supra Part V (outlining the approaches adopted by other jurisdictions that Maryland should implement).