Loss of Chance: A Behavioral Analysis of the Difference between Medical Negligence and Toxic Torts

42 Pages Posted: 13 Jan 2010

See all articles by Boaz Shnoor

Boaz Shnoor

The Academic College for Law & Science; Sha'arei Mishpat

Date Written: April 12, 2009


In recent years, more courts have allowed claims for "loss of chance" (LOC) in medical negligence claims, while denying it in other cases, including toxic torts. At the same time, most of the legal theoretical literature supports recognizing LOC in toxic torts, and claims that recognizing LOC in toxic torts is at least, if not more, advantageous than recognizing it in medical negligence.

This article aims to explain this intriguing gap between theory and practice using behavioral law tools. The article claims that the differences in the way courts emotionally react to these kinds of cases leads courts to act differently in cases where current law does not allow them to rule in favor of the plaintiff and against the defendant. In medical negligence cases, courts strongly feel that defendants' negligent behavior is an outrageous betrayal of trust and that the plaintiffs' unique situation is so unfair as to justify punishing the responsible person. Therefore, they seek new legal ways to find the defendant liable, and are inclined to adopt new liability theories when causation was not proved. In contrast, courts do not feel so strongly about toxic torts cases, since no trust is involved and the plaintiff did not expect anything out of the polluter in the first place. Therefore, their inclination to adopt new liability theories that will allow for a verdict in favor of the plaintiff in the absence of proof of causation is much weaker.

The above analysis has major implications for behavioral law analysis: it emphasizes the pervasiveness of behavioral elements in the legal decision making process; it shows that the willingness of courts to change the law is influenced by behavioral effects; and it can aid theorists and lawyers in identifying situations in which the courts would be susceptible to changing the law. Finally, it can aid in predicting in which cases the LOC doctrine has better chances to be accepted in the future - in situations involving betrayal, where the negligent behavior of the defendant is anomalous compared to the usual behavior in the defendant's reference group, and the plaintiff's damage is exceptional.

Keywords: Loss of Chance, Behavioral Law, Litigation, Tort Law, Medical Negligence, Toxic Torts

JEL Classification: K13, K32, K41, D70, D81

Suggested Citation

Shnoor, Boaz, Loss of Chance: A Behavioral Analysis of the Difference between Medical Negligence and Toxic Torts (April 12, 2009). American Journal of Trial Advocacy, Vol. 33, p. 71, 2009, Available at SSRN: https://ssrn.com/abstract=1535290

Boaz Shnoor (Contact Author)

The Academic College for Law & Science ( email )

Margo`a 5

Sha'arei Mishpat ( email )

1 Aliat Ha'Noar St.
Hod Hasharon, 45101

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