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46 S.D. L. Rev. 618 (2001)
Jorgenson v. Vener: The South Dakota Supreme Court Declares Loss-of-Chance Doctrine as Part of Our Common Law in Medical Malpractice Torts

handle is hein.journals/sdlr46 and id is 628 raw text is: JORGENSON V. VENER: THE SOUTH DAKOTA SUPREME COURT DECLARES LOSS-OF-CHANCE DOCTRINE AS PART OF OUR COMMON LAW IN MEDICAL MALPRACTICE TORTS SHAWN M. NICHOLS In Jorgensen v. Vener, the South Dakota Supreme Court adopted a new medical malpractice cause of action by adopting the loss-of-chance doctrine as common law. The loss-of-chance doctrine grants patients a cause of action against a defendant-physician who may have contributed to the plaintiffs harm. In Jorgenson the Court resolved to address the doctrine's critics who argue that allowing recovery for lost chances will unfairly impose new liabilities on the medical field. The court addressed these concerns by adopting a separate injury approach. This approach purports to allow a new form of plaintiff to recover without having to modify traditional tort laws. The plaintiff must prove that he lost a chance for a more favorable medical outcome and that the defendant is probably responsible for the lost chance. Even though the court contended that traditional medical malpractice standards are unaffected, in Jorgenson relief was merely artfully fashioned in a manner that yields results inconsistent with traditional jurisprudence. Although the loss- of-chance doctrine as adopted in Jorgenson supercedes traditional tort law, a more sensible application of the policy considerations behind the doctrine can be achieved without changing the common law of South Dakota. By borrowing from South Dakota common law in regard to contributory negligence and by viewing lost chances in terms of aggravation or exacerbation of the pre-existing injury, the same equitable result can be achieved within a more practical framework. I. INTRODUCTION Ordinarily, when faced with negligence caused by a defendant-doctor, the plaintiff has to prove 1) that the doctor had a duty to assist the patient, 2) that the doctor breached this duty in failing to correctly assist the patient, and 3) that this failure caused the ultimate injury.1 In determining that the physician caused the plaintiff's injury, the jury then weighs the evidence presented at trial and must conclude that more likely than not, 1. Michelle L. Truckor, Comment, The Loss of Chance Doctrine: Legal Recovery For Patients on the Edge of Survival, 24 U. DAYTON L. REv. 349, 353 (1999) (restating briefly the elements for traditional medical malpractice cause of action).

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