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42 S.D. L. Rev. 279 (1997)
The Loss of Chance Doctrine: A Small Price to Pay for Human Life

handle is hein.journals/sdlr42 and id is 287 raw text is: THE LOSS OF CHANCE DOCTRINE: A SMALL PRICE TO PAY FOR HUMAN LIFE MARGARET T. MANGAN The Loss of Chance Doctrine holds a physician accountable for depriving a patient of a chance of recovery or survival when the physi- cian's conduct is negligent. Jurisdictions are split on whether or not to recognize the doctrine. Those jurisdictions which recognize the loss of chance doctrine find that a physician who negligently diagnoses a pa- tient's illness should be held accountable and this accountability should not be dependent upon the patient's chance of surviving the illness. Ju- risdictions which reject the loss of chance doctrine find that the doc- trine places an undue burden upon the medical community in allowing a patient to recover for a mere chance or possibility of survival or re- covery. This burden, no matter how great, should not be given more importance than human life. The value of human life should always be the primary concern. I. INTRODUCTION There are two competing interests under the loss of chance doctrine. The first is that of the patient who has received a negligent diagnosis or inadequate treatment from a physician or other health care provider.' The second interest is that of the physician who must constantly battle both personal and professional burdens.' Smith v. State' is representative of a patient's concerns under the loss of chance doctrine. In Smith, Smith was admitted to the hospital for minor surgery on his foot.4 During his admission, a chest x-ray was taken which disclosed certain abnormalities in his lungs.5 Smith was discharged with no knowledge of potential problems and with no follow-up care recommended.6 Smith returned to the hospital over fourteen months later complaining of chest pain, fever, and chills.7 A chest x-ray indicated that the mass, dis- closed in the previous x-ray, had doubled in size.8 Additional tests re- 1. For a discussion of the effects that negligent medical care has on the patient, see infra notes 3-24 and accompanying text. 2. For a discussion of how the physician is affected by medical malpractice litigation, see infra notes 25-41 and accompanying text. 3. 676 So. 2d 543 (La. 1996). 4. Id. at 545. 5. Id. The radiologist identified a mediastinal mass projected to the right of the trachea. Id. The physician recommended further testing be performed. Id. 6. Id. 7. Id. 8. Id.

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