Volz v. Ledes, 895 S.W.2d 677 (Tenn. 1995), is an example where a state that follows the traditional rules of proximate cause, allowed recovery based on a showing that the healthcare providers' negligence reduced the chance of survival by more than fifty percent (sixty percent to five percent).
Charles Volz, who had previously been operated on for testicular cancer, went to consult with Dr. Claud Ledes, an oncologist, in September 1989. Id. at 678.
At that point, Dr. Ledes erroneously told Volz that a mass in Volz's abdomen was scar tissue from a previous operation and that no further treatment was necessary. Id. in December of 1989, it was discovered that the mass was a cancerous tumor. Id.
Surgery was performed immediately by another doctor, but at that point the cancer had spread dramatically. Id. Volz was treated with chemotherapy by Dr. Ledes' partner until May 1990, whereupon he was transferred to the care of Dr. Patrick Loehrer. Id.
When Dr. Loehrer first saw Volz, the patient had only a five-percent chance of survival. Id. Plaintiff's expert testified that Dr. Le des deviated from the recognized standard of care in four ways, viz.:
"(1) he chose the wrong chemotherapy drugs;
(2) administered them in improper dosages;
(3) as well as at improper intervals;
(4) Dr. Ledes improperly diagnosed Volz's recurrent mass as scar tissue rather than tumor." Id.
According to plaintiff's expert, Volz had a sixty-percent chance of complete recovery in September of 1989 when he was first seen by Dr. Ledes.
In Volz, the Tennessee Supreme Court upheld the verdict rendered in favor of the Volz estate, saying:
The Tennessee wrongful-death statute requires that a plaintiff in a medical malpractice action prove that "as a proximate result of the defendant's negligent act or omission of accepted community medical standards, the plaintiff suffered injuries which would not otherwise have occurred."
This statutory language is simply another way of expressing the requirement that the injury would not have occurred but for the defendant's negligence, our traditional test for cause in fact.
Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993). Additionally, causation in medical malpractice cases must be shown as a matter of probability, i.e., more likely than not, or greater than a 50 percent chance, that the plaintiff's injuries would not have occurred but for the negligent actions of the defendant(s). Id.
The record reveals that the plaintiffs proffered sufficient proof at trial to establish that the negligence of Dr. Ledes more likely than not was the proximate cause of the death of Robert Volz. Expert medical testimony also established he had a 60 percent chance of complete recovery. Further, the plaintiffs offered uncontroverted testimony that the defendant, Dr. Ledes, failed to act in accordance with accepted community standards of medical practice for treatment of the disease from which Volz was suffering. The plaintiffs' proof established, that as a result of the defendant's deviation from such medical standards, Robert Volz suffered a death which otherwise would not have occurred. Stated another way, the record reveals that it was more likely than not Robert Volz would have survived the cancer but for the defendant's negligent actions. (Id. at 679-80.)