Probabilistic Causation in the Loss of Chance Doctrine: A Comment on Efficiency and Error Mitigation

18 Pages Posted: 14 May 2022 Last revised: 28 May 2022

See all articles by Robert J. Rhee

Robert J. Rhee

University of Florida Levin College of Law

Date Written: April 26, 2022

Abstract

The loss of chance doctrine in tort law solves a recurring problem in the context of medical malpractice in which severely ill patients are misdiagnosed or mistreated. Absent a theory permitting probabilistic recovery, traditional factual causation inquiry always results in the finding of no causation in individual cases. But we know as a matter of practical certainty that negligence adversely affects outcomes in the minority of cases based on probabilities. While the theory is sound, the majority rule of proportional damages, calculated as the product of the full value of physical loss and the percentage reduction in the chance of survival, is demonstrably flawed. It is inefficient in two ways: it does not sufficiently deter negligence, and it does not minimize total error in misallocated payments as between tortfeasor and plaintiffs and among plaintiffs themselves. This article provides a statement of the correct rule, the underlying probability analysis, and a demonstration of the error mitigation analysis. The core problems are two: (1) a conceptualization of the proper reference class; (2) a conceptualization of probabilities as not static, but dynamic with the incorporation of time and new information.

Keywords: Loss of chance, causation, probabilistic causation, probability analysis

JEL Classification: k10, k13

Suggested Citation

Rhee, Robert J., Probabilistic Causation in the Loss of Chance Doctrine: A Comment on Efficiency and Error Mitigation (April 26, 2022). Suffolk University Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4094281 or http://dx.doi.org/10.2139/ssrn.4094281

Robert J. Rhee (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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