An Inventory of Mathematical Blunders in Applying the Loss-of-a-Chance Doctrine

Abstract:     
This paper catalogues several types of missteps made in loss-of-a-chance cases. Whether a court has decided to endorse or to reject proportional recoveries for the loss of less-than-even odds of a favorable outcome, more careful consideration of the mathematical and other concepts involved in such cases should promote greater clarity in the analysis. Unfortunately, a number of judges, lawyers, and commentators have made errors in dealing with loss-of-a-chance claims, including mistakes related to comparisons across stages of a disease, flawed assumptions about background mortality rates, and faulty calculations related to changes in the chance of survival. This paper recommends that courts adopt an attributable risk equation when resolving these cases.

Accepted Paper Series