Loss of Chance Doctrine

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.

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.

Case Studies: Loss of Chance Doctrine

Case Study 1: Massachusetts Supreme Court Ruling

In a recent case in Massachusetts, a patient with less than a 50 percent chance of recovery was awarded damages for the lost chance of recovery due to a doctor’s failure to treat stomach cancer. Despite the patient’s initial low chance of recovery, the court recognized the significance of the doctor’s negligence in diminishing the patient’s already limited chances.

This case study demonstrates the evolving perspective in Massachusetts regarding the denial of compensation based on arbitrary recovery percentages.

Case Study 2: States Adopting the Loss of Chance Doctrine

Several states, including Arizona, Connecticut, Kansas, Illinois, and others, have adopted the loss of chance doctrine. In these states, denying compensation solely based on a specific recovery percentage is considered illogical. By acknowledging the impact of medical malpractice on a patient’s chance of recovery, these states ensure that victims and their families have a legal avenue for seeking compensation.

This case study highlights the progressive approach taken by these states to address the complexities of medical malpractice cases.

Case Study 3: States Not Recognizing the Loss of Chance Doctrine

On the other hand, certain states such as Florida, Kentucky, Maryland, and others do not recognize the loss of chance doctrine. In these states, the traditional approach to determining damages based on the substantial factor in a patient’s injury or death remains in place. Victims in these states may face challenges in pursuing compensation for the lost chance of recovery due to medical negligence.

This case study underscores the variations in legal frameworks across different jurisdictions and the implications for medical malpractice claims.