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70 Def. Counsel. J. 301 (2003)
Loss of Chance in Medical Malpractice: A Look at Recent Developments

handle is hein.journals/defcon70 and id is 303 raw text is: Loss of Chance in Medical Malpractice: A Look at Recent Developments The growing acceptance of this doctrine raises difficult public policy issues, as well as concerns for the limits of medical professional liability By Tory A. Weigand T HE acceptance and application of the loss of chance doctrine in medical mal- practice litigation continues to grow at an alarming rate. While once only a minority view, a majority of the jurisdictions that have addressed the issue now favor appli- cation of the doctrine. What are the recent decisions and developments, and what are possible defense strategies? THE DOCTRINE In its purest form, loss of chance is a doctrine permitting recovery of damages for the destruction or reduction of pros- pects for achieving a more favorable out- come. It most often arises in failure to diagnose cases, but it also has been recog- nized and applied in a variety of similar instances in which a patient who already is ill or stricken claims medical mistreatment that resulted in the loss of a chance of a better outcome. Absent timely diagnosis or other alleged failure, so the argument goes, the patient's chances for cure or a more favorable outcome would have been greater, with the result a palpable loss de- serving of compensation. The effect of the doctrine is that it alters the traditional more likely than not bur- den of proof. Under loss of chance, claim- ants are permitted to recover damages even though they have only a 50 percent or less chance of survival or a better outcome prior to the negligence. Absent the special treatment or recognition of loss that the loss of chance doctrine affords, plaintiffs otherwise would not be able to meet the traditional burden of proof as to causation (greater than 50 percent) as it is more likely than not that the underlying condi- IADC member Tory A. Weigand is a partner in the Boston office of Morrison, Mahoney & Miller, where he has a diver- sifted litigation and trial practice in a va- riety of areas, including medical malprac- tice. He is a graduate of Colby College and earned his J.D. cum laude at the New England School of Law. tion or disease caused the harm. While the loss of chance doctrine can be traced to both early contract and tort cases, the most commonly cited modem source is a 1981 Yale Law Review article by Profes- sor Joseph King Jr., Causation, Valuation and Chance in Personal Injury Torts In- volving Pre-Existing Conditions Future Consequences.' This article is a must-read for defense counsel as it has been widely cited and discussed in virtually every juris- diction that has adopted the doctrine. APPLICATION In theory, loss of chance is applicable to any type of case in which the chances of a better outcome have been diminished, al- though it has received limited acceptance in non-medical malpractice actions. As to medical malpractice, the doctrine has been raised in a variety of contexts, including claims for failure to call emergency ser- vices in a timely fashion,' claims for failure to make timely admissions to hospitals3 1. 90 YALE L.J. 1353 (1981). See also Joseph King Jr., Reduction of Likelihood: Reformulation and Other Retrofitting of the Loss-of-Chance Doc- trine, 28 U. MEM. L. REv. 481 (1998). 2. Blinzer v. Marriot Int'l Inc. 81 F.3d 1148, 1152 (lst Cir. 1996). 3. McBridge v. United States, 462 F.2d 72, 74-75 (9th Cir. 1972).

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