Loss of chance: defined

The loss of chance doctrine looks at a patient’s chance of recovery. In the past, this has generally meant that patients with less than a 50 percent chance of recovery couldn’t collect damages due to a doctor’s negligence, but patients with a greater than 50 percent chance of recovery could. Here’s an example:

A cancer patient with a 40 percent chance of recovery goes to the hospital for an operation. The surgeon commits medical malpractice during the operation which causes the patient’s chances of recovery to decrease to 30 percent. If the patient sued the surgeon, many courts would not award damages as the patient already had less than a 50 percent chance of recovery to begin with.

But, is it fair?

That’s what many courts are questioning. The Massachusetts Supreme Court recently ruled that a patient with less than a 50 percent chance of recovery could collect. In that case, a jury awarded a wife over $325,000 for the lost chance of recovery after a doctor failed to treat the husband’s stomach cancer – even though he had less than a 50 percent chance of recovery.

Some states agree; others don’t

In addition to Massachusetts, some states such as Arizona, Connecticut, Kansas, Illinois, Indiana, Iowa, Louisiana, Michigan, Missouri, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, Wisconsin, Wyoming and the District of Columbia agree that denying compensation due to an arbitrary percentage of recovery doesn’t make sense. Each of these states has adopted the doctrine.

Other states such as Florida, Kentucky, Idaho, Maryland, Minnesota, Mississippi, New Hampshire, Tennessee, Texas, South Carolina and Vermont don’t recognize the loss of chance doctrine.

Victims, or their families, should contact an experienced attorney in medical malpractice claims because even though all states don’t recognize the doctrine, there may be more than one venue available to bring a lawsuit. Discuss your situation with an experienced medical malpractice attorney. Consultations are free, without obligation and are strictly confidential.