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“Loss of Chance” Doctrine in Medical Malpractice Cases


The "loss of chance" doctrine (LOC doctrine) is premised on the theory that the plaintiff should be compensated for the loss of achieving a more favorable outcome when a defendant's negligence destroys or reduces that prospect.

Application of the doctrine assumes that the plaintiff suffered from some preexisting condition or disease that the defendant did not cause. The defendant is held liable if the negligence deprives the plaintiff of the chance of survival or a more favorable outcome. Damages under the LOC doctrine are awarded "based on the extent to which the defendant's tortious conduct reduced the plaintiff's likelihood of receiving a better outcome."

While the LOC doctrine is theoretically applicable to a multitude of cases, its widest application is in the area of medical malpractice. The courts have given various reasons for applying the doctrine to that subject matter.

The LOC doctrine in medical malpractice cases has garnered a great deal of attention in judicial opinions and in law review articles. The highest courts in 22 states have adopted some form of the doctrine. However, the highest courts of nine states have rejected the doctrine. The legislatures in five states have addressed the issue in some respect, including two states that have enacted legislation repudiating the "loss of chance" cause of action.

Cases involving the delayed diagnosis of cancer are typical subjects for the LOC doctrine. Assertions by plaintiffs that medical malpractice deprived them of a probability of a cure or for a better outcome are frequently met with defense complaints that the claims are speculative.

The courts have nevertheless allowed these cancer cases to be weighed by a jury because, as one court has observed, "e can then only deal in probabilities since it can never be known with certainty whether a different course of treatment would have avoided the adverse consequences."

New York is routinely listed among the states that have adopted some form of the LOC doctrine. New York's highest court, the Court of Appeals, has yet to accept or reject the doctrine.

To contact Faraci Lange about a potential medical malpractice case, please contact us for a free legal consultation.