Missed Cancer Diagnosis in Maryland? Why the 51 Percent Rule Decides Wrongful Death Cases

When a doctor misses a cancer on a scan, or a hospital sends home a patient whose infection is about to turn deadly, families ask a simple question after the funeral: would she still be here if they had caught it? In Maryland, the answer to that question, put in percentages, often decides whether a wrongful death case exists at all.

Maryland is one of the states that refuses to recognize what lawyers call "loss of chance." That rule matters most in exactly the cases that hurt the most: delayed cancer diagnoses, missed infections, and emergencies where the patient was already very sick when the mistake happened.

What "loss of chance" means

Some states let a family recover when a doctor's negligence took away a patient's chance of surviving, even if that chance was less than even. If proper care would have given a patient a 40 percent chance of living, and the doctor's mistake erased it, those states allow a claim for the lost 40 percent.

Maryland does not. To win a wrongful death case here, the family must prove that the negligence more likely than not caused the death. In practice, that usually means expert testimony that, with proper care, the patient probably would have survived: better than a 50 percent chance.

The case: a missed scan and a shortened life

The Supreme Court of Maryland (then called the Court of Appeals) reaffirmed this rule in Wadsworth v. Sharma, 479 Md. 606 (2022).

Stephanie Wadsworth had been treated for advanced breast cancer in 2006. Years later, in April 2013, a PET/CT scan ordered by her oncologist showed a new and potentially cancerous lesion on her collarbone. According to the court, the oncologist reviewed the scan but did not tell Ms. Wadsworth about the results or order further testing. The cancer was not found until early 2016, after she fell and injured her shoulder. She died in June 2017.

Her husband, children, and father sued. The expert evidence was that by the time of the missed 2013 scan, the cancer had already spread, and that once breast cancer spreads it cannot be cured. With timely treatment, though, the family's evidence was that she would have lived about two and a half years longer than she did.

The trial court threw out the wrongful death claim, and both appellate courts agreed. The Supreme Court held that a family suing under Maryland's Wrongful Death Act "bears the burden of proving, by a preponderance of the evidence, that the defendant's negligence proximately caused the decedent's death." Because the undisputed evidence was that her cancer, not the missed scan, was what killed her, the claim was "a loss of chance case, which is not recognized in Maryland."

The Court relied on two earlier decisions: Weimer v. Hetrick, 309 Md. 536 (1987), a newborn death case, and Fennell v. Southern Maryland Hospital Center, Inc., 320 Md. 776 (1990), where a woman with meningitis went unseen by a doctor for hours and died. In Fennell, the family's own expert put her chance of survival with proper care at 40 percent, and the Court held that was not enough. In Wadsworth, the Court said any change to this rule is for the General Assembly, not the courts.

Two judges dissented. They would have let the claim go to a jury because the family's evidence showed she more likely than not would have lived years longer with timely treatment.

What can still be recovered

Wadsworth is a hard rule for families, but it is not the end of every case. Three points matter.

1. The survival claim can go forward even when the death claim cannot. Maryland has two kinds of death cases. The wrongful death claim belongs to the family and compensates their loss. The survival claim belongs to the person who died, through their estate, and compensates what they suffered while alive. In the same Wadsworth case, the Appellate Court of Maryland (then called the Court of Special Appeals) held that the estate's survival claim could proceed. It said the estate may recover for conscious pain and suffering, medical expenses, and lost wages caused by the negligence "even if the personal representative can not prove that the defendant's negligence caused the decedent's death." It also allowed recovery for the patient's fear and mental anguish if she knew the negligence had shortened her life. The Supreme Court reviewed only the wrongful death claim, so that part of the ruling stands. (Funeral expenses and the shortening of life itself were not recoverable.)

2. The fight is usually about the timeline. The key question is the patient's odds at the moment of the mistake, not at the moment of the correct diagnosis. In Barton v. Advanced Radiology, P.A., 248 Md. App. 512 (2020), a radiologist did not biopsy a breast lump in 2012. By the time the cancer was diagnosed in 2013, it had advanced from what the family's expert described as Stage I to Stage III and later spread. A jury found for the family, but the trial judge set the verdict aside, finding the family had not proven that the radiologist's mistake caused her death. The Appellate Court reinstated the verdict. It held that the jury could reasonably find that if the cancer had been caught in 2012, she had an 80 percent probability of not dying from it. That is a traditional causation case, not a loss of chance case, and Maryland allows it.

3. Expert testimony makes or breaks the case. In Barton, the court looked at "the totality" of the expert's testimony rather than one isolated statistic. In Wadsworth, no expert said the patient would probably have survived. The difference between those two outcomes was largely what the medical experts could honestly say about the patient's odds, and when.

How Maryland compares with D.C. and Virginia

In D.C., an earlier decision, Ferrell v. Rosenbaum, 691 A.2d 641 (D.C. 1997), used "substantial factor" language for negligent treatment of a potentially fatal condition. But in Grant v. American National Red Cross, 745 A.2d 316 (D.C. 2000), the court said it did not read Ferrell "as deviating from the basic standard of proof of causation by probability." In Virginia, Brown v. Koulizakis, 229 Va. 524 (1985) and Blondel v. Hays, 241 Va. 467 (1991) set the "substantial possibility" test for getting past a motion to strike, while the jury decides whether the negligence caused the death. Where the care happened, and which state's law applies, can change how a delayed diagnosis case is built.

What this means for Maryland families

If you lost someone after a missed or delayed diagnosis in Maryland, a few practical points follow from these cases:

• Get the complete records early. Every scan, report, and follow-up note matters, because the case often turns on what the doctors knew and when. The date of the first missed finding can be the most important fact in the case.
• Do not assume a late-stage diagnosis ends the case. The question is how far the disease had progressed when the mistake happened, which may be months or years before the correct diagnosis.
• Both claims should be evaluated. Even where the wrongful death claim is difficult, the estate's survival claim may still be available. Our posts on who can bring a Maryland wrongful death claim and on Maryland's cap on pain and suffering explain how these claims fit together.
• Watch the deadlines. Medical malpractice and wrongful death claims in Maryland have strict filing deadlines and pre-suit requirements. See our Maryland statute of limitations guide and talk to a lawyer promptly.

Talk to Posey Lebowitz

Delayed diagnosis cases are among the most demanding in personal injury law. They require careful review of the medical timeline and qualified experts who can explain the patient's odds at each step. If your family lost someone after a missed or delayed diagnosis in Maryland, D.C., or Virginia, call Posey Lebowitz at (202) 524-0123 or use our contact form for a free consultation.

This is general information, not legal advice about your case.