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36 Wake Forest L. Rev. 605 (2001)
Tort Recovery for Loss of a Chance

handle is hein.journals/wflr36 and id is 617 raw text is: TORT RECOVERY FOR LOSS OF A CHANCE David A- Fischer- Loss of a chance is a novel theory of causation commonly used by courts in the United States in medical misdiagnosis cases. Yet, the theory has a vastly broader potential application than this. In fact, it could be applied in virtually every case of questionable causation. While this Article asserts that the doctrine could legitimately be expanded and applied in a variety of additional situations, the Article cautions that it would be unwise to apply the doctrine so broadly that it routinely supplants traditional causation rules. The Article searches for a principled basis for limiting the theory within proper bounds by comparing the differing applications of the loss of a chance doctrine in British Commonwealth cases and United States cases. The Article concludes that current rationales for the doctrine do not provide an adequate limiting principle, but that a case by case policy analysis can appropriately limit the theory. I. INTRODUCTION Tort lawyers in the United States often think of loss of a chance as a theory of probabilistic causation that only applies to medical malpractice misdiagnosis cases.! The theory is that if a physician negligently fails to diagnose a curable disease, and the patient is harmed by the disease, the physician should be liable for causing the loss of a chance of a cure. We shall see that if the chance of a cure is less than 50 percent, the plaintiff cannot prove by *© 2001 David A. Fischer. James Lewis Parks Professor of Law, University of Missouri-Columbia. The author gratefully acknowledges the assistance of Elizabeth Fischer, Elisabeth Key, Robert Lawless, Phillip Peters, Robert Rasmussen, and Jane Stapleton who read early drafts of the manuscript and provided very helpful comments. The author also gratefully acknowledges research help from Jennifer Floyd. All mistakes, however, are mine. The work on this Article was supported by a grant from the University of Missouri Law School Foundation. 1. E.g., Margaret T. Mangan, Comment, The Loss of Chance Doctrine: A Small Price to Pay For Human Life, 42 S.D. L. REv. 279, 283 (1997); Kevin Joseph Willging, Note, Falcon v. Memorial Hospital;- A Rational Approach to Loss-of-Chance Tort Actions, 9 J. CONTEMP. HEALTH L. & PoLY 545, 545-46 (1993). 605

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