Title: Loss of Chance in Medical Malpractice: A Look at Recent Developments: The Growing Acceptance of This Doctrine Raises Difficult Public Policy Issues, as Well as Concerns for the Limits of Medical Professional Liability
Abstract: The growing acceptance of this doctrine raises difficult public policy issues, as well as concerns for the limits of medical professional liability THE acceptance and application of the of chance doctrine in medical malpractice litigation continues to grow at an alarming rate. While once only a minority view, a majority of the jurisdictions that have addressed the issue now favor application of the doctrine. What are the recent decisions and developments, and what are possible defense strategies? THE DOCTRINE In its purest form, of chance is a doctrine permitting recovery of damages for the destruction or reduction of prospects for achieving a favorable outcome. It most often arises in failure to diagnose cases, but it also has been recognized and applied in a variety of similar instances in which a patient who already is ill or stricken claims medical mistreatment that resulted in the of a chance of a better outcome. Absent timely diagnosis or other alleged failure, so the argument goes, the patient's chances for cure or a favorable outcome would have been greater, with the result a palpable deserving of compensation. The effect of the doctrine is that it alters the traditional more likely than burden of proof. Under of chance, claimants are permitted to recover damages even though they have only a 50 percent or less chance of survival or a better outcome prior to the negligence. Absent the special treatment or recognition of loss that the of chance doctrine affords, plaintiffs otherwise would not be able to meet the traditional burden of proof as to causation (greater than 50 percent) as it is more likely than that the underlying condition or disease caused the harm. While the of chance doctrine can be traced to both early contract and tort cases, the most commonly cited modern source is a 1981 Yale Law Review article by Professor Joseph King Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Pre-Existing Conditions Future Consequences.1 This article is a must-read for defense counsel as it has been widely cited and discussed in virtually every jurisdiction that has adopted the doctrine. APPLICATION In theory, of chance is applicable to any type of case in which the chances of a better outcome have been diminished, although it has received limited acceptance in non-medical malpractice actions. As to medical malpractice, the doctrine has been raised in a variety of contexts, including claims for failure to call emergency services in a timely fashion,2 claims for failure to make timely admissions to hospitals3 and failures to defibrillate heart attack patients.4 The of chance doctrine most frequently arises in claims alleging negligent failures to diagnose. In those instances, it is alleged that a negligent delay in the diagnosis of a serious underlying condition or disease, such as cancer, has resulted in the or reduction of the chances of a favorable outcome, or even cure. POLICY JUSTIFICATION The primary justification for recognizing of chance, as stated by King, is the notion that life is precious and even the of a small chance of cure or better result is deserving of compensation. A similar justification is the argument that acts of negligence as to patients with poor prognoses should not go unredressed and that it is fundamentally unfair to deny or permit recovery based on whether the patient had a 50 percent or greater chance of a better outcome. Proponents also assert that it is unfair to deny recovery where any uncertainty as to outcome was caused by the defendant, another argument made by King. Another common justification is that without of chance, healthcare providers may be less inclined to treat ill patients or to perform a full spectrum of testing in less than optimum cases. SURVEY A. Recognizing Loss of Chance A survey of the 50 American states reveals that 24, as well as Puerto Rico, have adopted a form of the of chance doctrine in medical malpractice actions and recognize of chance as a compensable interest. …
Publication Year: 2003
Publication Date: 2003-07-01
Language: en
Type: article
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Cited By Count: 5
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