This section contains the nature of the case and procedural background.

Herskovits came to D in 1974 with complaints of pain and coughing. A chest X-rays early in the year revealed infiltrate in the left lung. Rales and coughing were present. In mid-1974, there were chest pains and coughing, which became persistent and chronic by fall of 1974. A December 5, 1974, entry in the medical records confirms the cough problem. P contends that Herskovits was treated thereafter only with cough medicine. In the early spring of 1975, P went south in the hope that the warm weather would help. With no improvement in his health, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion. Within 3 weeks, this led to the diagnosis of cancer. In July of 1975, Herskovits' lung was removed, but no radiation or chemotherapy treatments were instituted. Herskovits died 20 months later, on March 22, 1977, at the age of 60. The failed diagnosis reduced P's chance of survival by 14%. P initiated this survivorship action against D alleging failure to make an early diagnosis of her husband's lung cancer. D moved for summary judgment for dismissal on the basis that P probably would have died from lung cancer even if the diagnosis had been made earlier, which the trial court granted. P appealed; does a patient with a less than 50% chance of survival have a cause of action against a hospital for reducing that chance by 14%.

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