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25 Rutgers L.J. 893 (1993-1994)
An Analysis of New Jersey's Increased Risk Doctrine

handle is hein.journals/rutlj25 and id is 903 raw text is: AN ANALYSIS OF NEW JERSEY'S INCREASED RISK DOCTRINE I. INTRODUCTION Conventional tort law requires a tortfeasor to compensate an injured victim only if the injury occurred as a result of the wrongful act or omission.1 In some situations, however, it is impossible to determine whether or not a defendant's conduct contributed to the victim's injury. Such causal uncertainty frequently arises in the medical malpractice context. Consider the following example: A patient suffering from a nagging cough consults her physician. The doctor negligently fails to order chest x-rays, attributing the patient's symptoms to allergies. Nine months later, this patient is in the later stages of lung cancer. Had the physician promptly discovered the cancer, immediate surgical intervention would have given the patient a 30% chance of survival. However, by the time the disease is actually discovered, the patient's condition has become inoperable and there is no chance that she will survive. The patient dies from her illness. While it is clear that the doctor's negligence increased the patient's risk of dying by 30%, it is impossible to determine whether the doctor's negligent conduct caused her death.2 Faced with this scenario, the majority of courts would follow one of two distinct approaches to ascertain the doctor's liability:3 (1) they would apply a relaxed version of the traditional more-likely-than-not standard of causation; or (2) they would recognize a new legal harm- lost chance of survival. Under the former approach, the doctor would be held liable for the patient's death if the plaintiff's estate could convince the jury that the 30% increased risk attributable to the doctor's negligence was a substantial factor in causing the patient's ultimate demise.4 Under the latter, the doctor would be held liable only for the 1. See generally W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 5-7 (5th ed. 1984). 2. See infra notes 16-17 and accompanying text. 3. See Richard W. Wright, Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof. Pruning the Bramble Bush by Clarifying the Concepts, 73 IOWA L. REV. 1001, 1068 (1988). 4. See infra notes 26-29 and accompanying text.

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