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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