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48 U. Louisville L. Rev. 639 (2009-2010)
Kemper v. Gordon: The Kentucky Supreme Court Forecloses the Loss-of-Chance Doctrine in Medical-Malpractice Cases

handle is hein.journals/branlaj48 and id is 645 raw text is: KEMPER V GORDON THE KENTUCKY SUPREME COURT FORECLOSES THE LOSS-OF-CHANCE DOCTRINE IN MEDICAL-MALPRACTICE CASES Andrew M Palmer* I. INTRODUCTION How much is an additional chance at survival worth? Should an individual be entitled to compensation if someone caused him to have a diminished chance of surviving a fatal illness? Should the wrongdoer walk away free of any repercussions? What role does the chance of survival play? Does having less than a 50% survival chance change the analysis? Was a valuable survival chance still taken? These questions are the essence of the loss of chance doctrine. David Leibson, Professor of Law at the University of Louisville's Brandeis School of Law, often poses the following hypothetical: Imagine two groups of 100 people. In Group A, 39 of 100 are going to survive, and in Group B, 25 of 100 are going to survive. If you were in Group A, how much would you charge a person in Group B to change places with you?' Not surprisingly, most students answer that no amount of money is worth changing to Group B and losing 14 chances to survive.2 However, this conceptual loss is effectively what happens in a medical-malpractice case in which the patient has a reduced chance of survival due to a physician's negligence. One question that arises is whether the loss of a percentage of survival should be compensable if the original chance of survival was less than 50% in the best of circumstances. It is nonsensical to argue that there is no patient injury because the patient's chance of survival was less than 50% before the doctor's error. Rather, when a patient has a small chance of a meaningful recovery, any loss of chance is more valuable because that small chance may be her only hope. In Kemper v. Gordon, the Kentucky Supreme Court disagreed, holding that patients injured and killed by physician negligence shall not recover damages when their probability of survival was less than 50% at the time of J.D. Candidate (May 2010), Brandeis School of Law, University of Louisville. 13 DAVIDJ. LEIBSON, KENTUCKY PRACrICE, TORT LAW§ 10-28 (2d ed. 2009). 2 Id 639

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