Loss of Chance Doctrine

Loss of Chance Doctrine

What happens when a patient who had little or no chance for survival or improvement of a medical condition is the victim of medical malpractice? Is a physician liable for the death or illness of the patient even if the patient's outcome would not have been that much better absent the malpractice? Is the patient unable to recover merely because of his or her poor prognosis?

The loss of a chance doctrine in medical malpractice litigation refers to situations in which medical negligence deprived a patient of a chance to survive or recover from a health problem. The loss of chance doctrine also applies to situations in which the claimed malpractice lessened the effectiveness of treatment or increased the risk of an unfavorable outcome to the patient. The lost chance doctrine is based on the theory that to the extent a plaintiff's chance of recovery or survival is lessened by a physician's malpractice, he or she should be able to present evidence to a jury that the malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery. Under the doctrine, even where there is evidence that a plaintiff's estimated chance of recovering from an existing illness or injury is slight, absent the malpractice, such evidence is sufficient for the plaintiff to meet her causation burden of proof.

The loss of chance doctrine is often applied in cases in which the alleged malpractice is the failure to make a timely diagnosis of a treatable disease. In one case, a plaintiff alleged that his doctor was negligent in failing to order a particular blood test, leading to a delayed diagnosis of colon cancer. Applying the loss of chance doctrine, the court ruled that the physician's failure to order the test was a breach of his duty to the plaintiff and that the breach resulted in the lost chance of early detection and treatment of the cancer.

Some states require plaintiffs to present evidence that of a greater-than-50-percent chance of a more favorable outcome than that actually received in order to take advantage of the loss of chance doctrine. Others merely require evidence that it was more likely than not that the plaintiff's chances for a better outcome were diminished in some way. Regardless of how the doctrine is applied, the issue of causation is difficult to prove because medical outcomes are speculative.

The loss of chance doctrine presents a problem with respect to ascertaining damages. Juries are required to determine to what extent a patient's chances of survival or recovery were lessened as a result of the claimed malpractice. In addition, juries may be asked to determine the monetary value of a marginally shorter life expectancy.

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