LOSS OF CHANCE Doctrine Discussed...

This controversial doctrine is being seen with increasing frequency in medical negligence cases in which the patient had some chance of survival, or chance for a better outcome, that could have been 50 percent, or lower, prior to the alleged medical negligence. We see the emergence of this doctrine in its increasing use by plaintiff attorneys in claims against treating physicians for failure to act in a timely manner in many but not all states. The loss of chance can involve failure to timely diagnose an illness (especially cancer), failure to timely refer a patient to a specialist, failure to call for emergency assistance, failure to timely perform surgery, failure to timely admit or transfer a patient, and failure to prescribe appropriate medications, often involving cancer medications.

State courts and legislatures are struggling with establishing the appropriate parameters for this doctrine. The plaintiff side argues against exonerating a negligent physician from liability when the patient had a chance, albeit less than an even chance, of survival, absent the physician's negligence. The defense side points out that to recognize loss of chance in medical negligence would dramatically expand liability for physicians in a way that would be disproportionately punitive when compared with other professions. If the courts continue to struggle, the legislatures will probably step in to resolve the matter.

The loss of chance doctrine presents a thorny problem with respect to determining damages. Juries must determine to what extent a patient's chances of survival or recovery were diminished as a result of the negligence. Juries may be asked to determine the monetary value of a marginally shorter life expectancy. Some courts have allowed full damages, while others prefer proportionate damages, requiring the jury, in effect, to calculate the worth of the deceased patient's life and award damages based on a percentage representing the loss of chance. At best, these are difficult calculations – ones that imply a degree of accuracy with which not everyone is comfortable.

Regardless of how these issues are resolved in state courts and legislatures, it is clear that the loss of chance doctrine is becoming an important component of medical malpractice litigation in many areas of the country.