Psychological Aspects of the Loss of Chance Doctrine

Center for Economic Policy Research (CEPR) Conference on Psychology and Economics, June 2001

26 Pages Posted: 9 Sep 2009

Date Written: June 8, 2001

Abstract

The loss of chance doctrine in medical malpractice cases holds that when a doctor is responsible for reducing a patient’s chance of survival by some percentage, the patient (or the patient’s estate) should be compensated by the doctor for that percentage loss. Compensation is often determined by multiplying the value of a patient’s life by the lost chance. This paper investigates psychological factors that may affect a legal decision maker’s evaluation of damage awards in loss of chance cases. A paper and pencil experiment and a large-scale mock jury study (the latter using videotaped trials) are conducted to investigate the following questions: (1) Are identical lost chance percentages evaluated differently as a function of where they fall on the probability scale? (2) Are “lost chances to live” evaluated differently from “increased risks to die?” (3) Is lost chance reasoning more likely to be invoked for cases that have a large number of plaintiffs (i.e., class actions)? and (4) Does group deliberation affect the magnitude or frequency of lost chance damage awards?

Keywords: Loss of chance, medical malpractice, damages

Suggested Citation

Koehler, Jonathan J. and Brint, Arienne P., Psychological Aspects of the Loss of Chance Doctrine (June 8, 2001). Center for Economic Policy Research (CEPR) Conference on Psychology and Economics, June 2001. Available at SSRN: https://ssrn.com/abstract=1469682

Jonathan J. Koehler (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Arienne P. Brint

Harvard Law School

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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