Lost Chance Doctrine in Medical Malpractice Cases: Evolving Standards of Proof and Damages Formulas (Presentation Slides)

Abstract

This presentation reviews the "loss of chance" doctrine endorsed in one form or another by approximately half of the states in the U.S., the different approaches taken by courts nationwide, how it is evolving, and evidentiary considerations.

Unique to medical malpractice, "loss of chance" or "lost chance" theories arise when a doctor's negligence more likely than not deprived the patient of a chance or possibility of a better outcome. A majority of the states that have considered the question have endorsed the loss of chance doctrine, in one form or another.

But the law on loss of chance is in flux as more and more courts are abandoning the traditional all-or-nothing rule. The law is difficult to navigate due to the different approaches taken by courts around the country. Counsel must recognize when the doctrine is one of causation and when it is one of damages. Calculation of damages in such cases is complicated as some courts now take a proportional damages approach. Further, there remains uncertainty as to whether loss of chance represents a distinct claim that must be specifically pled, or whether it is simply an alternative item of damages in the plaintiff’s traditional negligence claim – and the answer dictates whether certain defenses are available or not.

Jury instructions can be particularly misleading or confusing for a jury considering a "lost chance" case. Counsel must challenge those and offer substitutes. Furthermore, counsel need to know the exact burden of proof and how damages are calculated.

Keywords: medical malpractice, loss of chance, damages, causation