The “Loss of Chance” Debate Continues

A recent decision provides hope for supporters of the “loss of chance” doctrine and further fuels the debate.  Pursuant to this controversial doctrine, which has now been adopted in 23 states, a plaintiff may recover damages from a defendant due to a heightened risk of injury, even if the plaintiff cannot prove causation.  The Minnesota Supreme Court recently joined those courts embracing the doctrine in the medical malpractice context. In its recent decision, the court permitted the parents of a seven-year-old girl afflicted by a rare form of cancer to pursue a medical malpractice recovery even though they could not prove that the defendant caused her condition.  The suit has reignited an intense debate and has generated national attention.

In the underlying dispute, the plaintiffs sued a pediatrician alleging he discovered and reported a lump on their newborn daughter’s back but failed to timely diagnose it as cancerous.  When another physician subsequently diagnosed a rare form of cancer, the parents filed suit alleging that the defending physician’s initial failures led to a decreased probability that their daughter would recover.

The suit was initially dismissed by the trial court which concluded that Minnesota did not permit a patient to recover damages for “loss of chance.”  However, the decision was overturned on appeal and confirmed by the Supreme Court.  In its holding, the appellate court stated that it is “beyond dispute that a patient regards a chance to survive or achieve a more favorable outcome as something of value.”

The suit, garnering considerable media attention, has now reinvigorated an intense debate. Opponents proclaim that the court’s support of the doctrine could lead to increased medical liability and healthcare costs.  They also assert that it could unfairly expose physicians to liability when they take on patients who are already seriously ill.  We will collectively watch the continued debate over the “loss of chance” doctrine to see how it evolves in medical malpractice and other professional liability matters.

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2 Comments

  1. So you say there is a chance? remind’ s me of Dumb and Dumber.

    A subjective concept defines a chance of cure and provides an opportunity for plaintiffs to skirt science and play to a lay jury. It really is a missed opportunity at a better chance and yesterday’s diagnosis obviously would be better to a jury and renders the entire causation defense ineffective.

    You always have a chance, maybe not a good one, and it is completely subjective like pain and suffering. In FTD cancer claims, staging of the lesion and a scientific determination of doubling times, for that exact type of lesion, brings some objectivity to defending this chance of cure.

    Slot machines are popular for the same reason as there is always a chance.

    Regards
    Jim O’Hare RPLU AIC AIS

  2. The Minnesota Supreme Court in this case says: “As one distinguished torts scholar has observed, when a physician negligently misses a diagnosis of a patient’s cancer, it is clear that, ‘ex ante, no patient would be indifferent to that loss of opportunity, which is why good physicians command high fees for good diagnosis.'” (quoting Richard A. Epstein, Torts 252 (1999)). If loss of chance is not accepted in a jurisdiction then how should it work? That is, when would the patient who suffered the misdiagnosis, a misdiagnosis that has lessened the patient’s chance of surviving the cancer by 20%, be able to recover (if ever) for that loss?

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