Loss of Chance Doctrine

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Victims of medical malpractice often find it very difficult to obtain damages if their doctor’s negligence wasn’t a substantial factor in their injury or death. The key word here is substantial. However, several states have begun looking at medical malpractice cases a bit differently under what is called the loss of chance doctrine.

What Is It?

The doctrine looks at a patient’s chance of recovery. In the past, this has generally meant that patients with less than a 50 percent chance of recovery couldn’t collect damages due to a doctor’s negligence, but patients with a greater than 50 percent chance of recovery could. Here’s an example:

A cancer patient with a 40 percent chance of recovery goes to the hospital for an operation. The surgeon commits medical malpractice during the operation which causes the patient’s chances of recovery to decrease to 30 percent. If the patient sued the surgeon, many courts would not award damages as the patient already had less than a 50 percent chance of recovery to begin with.

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Courts Are Questioning Whether It’s Fair

The Massachusetts Supreme Court recently ruled that a patient with less than a 50 percent chance of recovery could collect. In the case, a jury awarded a wife over $325,000 for the lost chance of recovery after a doctor failed to treat the husband’s stomach cancer – even though he had less than a 50 percent chance of recovery.

Some States Agree; Others Don’t

In addition to Massachusetts, some states such as Arizona, Connecticut, Kansas, Illinois, Indiana, Iowa, Louisiana, Michigan, Missouri, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, Wisconsin, Wyoming and the District of Columbia agree that denying compensation due to an arbitrary percentage of recovery doesn’t make sense. Each of these states has adopted the doctrine.

Other states such as Florida, Kentucky, Idaho, Maryland, Minnesota, Mississippi, New Hampshire, Tennessee, Texas, South Carolina and Vermont don’t recognize the loss of chance doctrine.

Victims, or their families, should contact an experienced attorney in medical malpractice claims because even though all states don’t recognize the doctrine, there may be more than one venue available to bring a lawsuit.

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