Alfonso v. Lund: Loss of Chance Rejected as a Basis for Recovery in Medical Malpractice
![handle is hein.journals/okcu12 and id is 197 raw text is: Alfonso v. Lund: Loss OF CHANCE REJECTED AS
A BASIS FOR RECOVERY IN MEDICAL MALPRACTICE
I. INTRODUCTION
Medical malpractice actions involving pre-existing condi-
tions have traditionally required the plaintiff to show that
more likely than not, the defendant's negligence caused the
plaintiff's injuries.1 The plaintiff must produce evidence show-
ing injury proximately caused by the physician's departure
from the recognized standard of care.2 As in any negligence
action, the evidence must rise above speculation and conjec-
ture in order to support the cause of action.' At times, an ag-
grieved patient is left without recourse against a negligent
physician who may have deprived the patient of a chance to
recover or survive.4
For example, a patient with only a twenty-five percent
chance of surviving a severe heart attack dies following the
negligent prescription of a lethal dose of medication. The pa-
tient's estate is without recourse against the negligent physi-
cian unless it can be shown that more likely than not, death
was caused by the negligent act of the physician and not the
pre-existing heart ailment. Faced with the apparent harshness
of this rule, it has been proposed that once there is evidence
that the defendant's negligence caused the plaintiff to lose his
chance of a better outcome, such a loss of chance should be
compensated even when only speculative.
Recently in Alfonso v. Lund,' the Court of Appeals for
the Tenth Circuit rejected loss of chance as a theory of
1. W. KEETON, D. DOBBS, R. KEETON & D. OWENS, PROSSER AND KEETON ON THE
LAW OF TORTS § 41, at 269 (5th ed. 1984) [hereinafter PROSSER].
2. Schrib v. Seidenberg, 80 N.M. 573,574, 458 P.2d 825, 826 (Ct. App. 1969).
3. 2 J. WImoRE, EVIDENCE IN TRIALS AT COMMON LAW § 663 (Chadbourn rev.
1979).
4. Comment, Medical Malpractice: The Right to Recover for the Loss of a
Chance of Survival, 12 PEPPERDINE L. REV. 973 (1985) [hereinafter Comment, Medi-
cal Malpractice].
5. Id.
6. 783 F.2d 958 (10th Cir. 1986).](ViewImageLocal?handle=hein.journals/okcu12&div=18&collection=&method=preview&ext=.png&size=3)
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Alfonso v. Lund: Loss of Chance Rejected as a Basis for Recovery in Medical Malpractice
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