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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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