Title: The Case for Across-the-Board Application of the Loss-of-Chance Doctrine
Abstract: It makes jurisprudential and public policy sense the doctrine to apply to chance cases when plaintiffs cannot prove causation NEGLIGENCE law traditionally has required that findings of liability be predicated on a showing that defendants were the cause in fact of plaintiffs' harm. To prevail, plaintiffs had to show that but for defendants' negligence, the injury complained of would not have occurred. In certain sub-sets of negligence law, application of the traditional rule had harsh consequences. Particularly in medical malpractice cases in which a physician's failure to diagnose a patient's pre-existing disease or condition allowed that disease or condition to progress, plaintiffs were barred from recovery in cases where their chance of a better outcome, absent negligence, was less than 51 percent. Recovery was denied because they were unable to prove that their injuries would not have taken place if proper diagnosis and treatment had been provided. In response to the perceived inequity of denying recovery in these cases, courts during the last 20 years have developed what has come to be known as the loss-of-chance doctrine. The specific nature of the doctrine varies by jurisdiction. Some courts relax causation requirements simply by accepting a lower threshold of proof.(1) Others view the lost chance itself, rather than the ultimate outcome, as the compensable injury.(2) Still others appear to recognize a hybrid of the first two approaches.(3) In general, the doctrine has been successful in facilitating compensation injured plaintiffs, and it now is the majority rule.(4) As currently applied in almost all jurisdictions, however, the loss-of-chance doctrine results in significant inequities defendants. Virtually all courts that recognize the loss-of-chance doctrine apply it only in those situations where the patient had less than a 50 percent chance of recovery or survival absent negligence (known as not-better-than-even cases), refusing to extend the doctrine to cases where the lost chance exceeded 50 percent (known as better-than-even cases). As a result, a plaintiff with a 51 percent chance of recovery or survival who is able to establish negligence by a preponderance of the evidence is allowed to recover full damages the ultimate injury suffered, notwithstanding the fact that there is a 49 percent chance that the injury would have occurred even if a proper diagnosis had been rendered and appropriate care given. In short, the equities have never been in balance in this area of tort law. Prior to the development of the loss-of-chance doctrine, large numbers of deserving plaintiffs failed because of their inability to make out a prima facie case of negligence, resulting in a windfall culpable defendants. Today, the pendulum of compensation has traveled to the opposite end of the spectrum, and defendants are routinely held liable in damages injuries that they did not cause, resulting in the systematic overcompensation of plaintiffs. It is strange that this problem has received virtually no attention in the courts or from commentators.(5) This fact is doubly surprising, given that a broader application of the loss-of-chance doctrine would allow defendants to limit damages to those actually flowing from their negligence, while at the same time allowing courts to reach results that intellectually are more credible. In refusing to extend the loss-of-chance theory to all cases in which plaintiffs cannot establish causation under traditional principles, courts confuse the probabilities associated with claimants' health and survival with the preponderance of the evidence standard, ignore the common law and academic context within which the theory originally developed, and achieve results that are at cross-purposes with current judicial and legislative efforts to curb the perceived excesses of the tort system, particularly as related to medical malpractice litigation. …
Publication Year: 1997
Publication Date: 1997-10-01
Language: en
Type: article
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Cited By Count: 1
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