Making up for lost time: your client could have recovered from an illness, if only his or her physician had made a correct diagnosis and provided appropriate treatment. Use the loss-of-chance doctrine to hold negligent doctors accountable.

The premise of a failure-to-diagnose medical negligence lawsuit is simple: A doctor fails to properly diagnose a medical condition, adversely affecting the patient's health, and the patient or his or her family seeks compensation. But proving causation can be complex. The physician did not cause the underlying medical condition, and the patient might not have recovered even if the condition had been properly diagnosed. Satisfying the traditional burden of proof with regard to causation tan be extremely difficult for the plaintiff, if not impossible.

Under the traditional definition of "proximate cause," the plaintiff must prove that if the defendant had not been negligent, he or she would not have suffered the injury. Applying this traditional definition in a failure-to-diagnose case requires file plaintiff to prove that, at the time of the failure to diagnose, he or she had a 50 percent or greater chance of recovery or survival; a plaintiff whose chance of survival was less than 50 percent will have no cause of action. A significant minority of states subscribe to this approach. (1)

Fortunately, most jurisdictions that have considered this issue have determined that the traditional definition of "causation" should not apply when a doctor's negligence reduces a patient's opportunity to recover. These jurisdictions instead subscribe to some form of the loss-of-chance doctrine, which allows the injured patient or his or her survivors to be compensated for the "lost chance" of recovery or survival resulting from the doctor's negligence.

The loss-of-chance doctrine comes into play only in those cases where the patient had less than an even chance of survival when he or she originally consulted a physician, and thus cannot satisfy the traditional standard of causation. The doctrine did not have much support until 1981, when the Yale Law Review published an article that stated:

   The loss of a chance of achieving a favorable
   outcome or of avoiding an adverse consequence
   should be compensable and should be
   valued appropriately, rather than treated as an
   all-or-nothing proposition. Preexisting conditions
   must, of course, be taken into account in
   valuing the interest destroyed. When those
   preexisting conditions have not absolutely
   preordained an adverse outcome, however, the
   chance of avoiding it should be appropriately
   compensated even if that chance is not better
   than even. (2)

The primary rationale for the loss-of-chance doctrine is that it imposes the costs of uncertainty--that is, whether a patient would have recovered but for the physician's negligence--on the negligent doctor, rather than on the patient.

In 1987, the Oklahoma Supreme Court held, in McKellips v. St. Francis Hospital, Inc., that

   in those situations where a health care
   provider deprives a patient of a significant
   chance for recovery by negligently failing to
   provide medical treatment, the health care
   professional should not be allowed to come in
   after the fact and allege that the result was
   inevitable inasmuch as that person put the
   patient's chance beyond the possibility of
   realization. Health care providers should not be
   given the benefit of the uncertainty created by
   their own negligent conduct. To hold otherwise
   would in effect allow care providers to
   evade liability for their negligent actions or
   inactions in situations in which patients would
   not necessarily have survived or recovered, but
   still would have a significant chance of survival
   Or recovery?

Courts that adopt the loss-of-chance doctrine in effect recognize a lost chance as a distinct cause of action, treating it as a compensable injury. (4) As a distinct claim, the loss of chance must still be proven under the traditional standard of proof. That is, the plaintiff must still prove by a preponderance of the evidence that the defendant's conduct reduced his or her chance of a more favorable outcome?

Some jurisdictions require that the plaintiff prove that the lost chance of recovery or survival was "substantial." (6) None of these courts has set a minimum for a "substantial" lost chance, but at least one has held that a lost chance of 11 percent meets this criterion. (7) Some courts have held that although statistical evidence may be required in the damages phase of the case, it is not required to prove causation. Rather, the plaintiff need only present expert testimony that his or her chance of recovery would have been "substantially" or "significantly" greater if not for the physician's negligence. (8)

Other jurisdictions hold that the lost chance need not be substantial or significant, as long as the negligence reduced the patient's opportunity to recover. Jurisdictions that subscribe to this rule have, either explicitly or implicitly, adopted [section] 323(a) of the Restatement (Second) of Torts (1965), which states:

   One who undertakes, gratuitously or for consideration,
   to render services to another which
   he should recognize as necessary for the protection
   of the other's person or things, is subject
   to liability to the other for physical harm
   resulting from his failure to exercise reasonable
   care to perform his undertaking, if ... his
   failure to exercise such care increases the risk
   of such harm.

Of those jurisdictions that have adopted the loss-of-chance doctrine, the majority use an approach consistent with this section of the restatement. (9)

Valuation of lost chance

The preferred approach to determining the value of a lost chance is the "percentage probability" method. (10) Under this formula, once negligence and causation have been proven, damages are computed by multiplying the chance of recovery lost by the total value of a complete recovery.(11) This formula requires the jury to place a monetary value on the life or limb that the plaintiff lost, or is in danger of losing. The percent of chance lost must then be the value of that life or limb. (12)

Consider this hypothetical situation, taken from the South Dakota Supreme Court's decision in Jorgenson v. Vener:

   The patient's task under the loss-of-chance
   doctrine ... would be to first prove that the
   physician's conduct caused the loss of the
   chance by a preponderance of the evidence.
   Once causation has been established, the value
   of the [lost chance] is compensable. Assuming,
   for example, that a patient had a 40 percent
   chance of recovery under optimal conditions,
   and the physician's negligence destroyed that
   chance, the value of the lost chance would be
   40 percent of the total value of a complete
   recovery. Similarly, if the patient's chance at
   recovery was 60 percent, and the physician's
   negligence eliminated that chance, the value
   of the lost chance would be 60 percent of the
   value of a complete recovery. Or, if instead of
   completely eliminating the chance of recovery,
   the physician's negligence merely reduced
   the chance of recovery from 40 percent to 20
   percent, then the value of the lost chance
   would be 20 percent of the value of a complete
   recovery. (13)

The loss-of-chance approach to proving causation in failure-to-diagnose cases is a fair way to compensate patients or their survivors for the denial of a chance to recover or survive caused by a doctor's negligence. Fortunately, this approach appears to gaining widespread acceptance in the courts. Plaintiff attorneys in states that continue to apply the more draconian all-or-nothing approach should push for adoption of the loss-of-chance doctrine.

Notes

(1.) See, e.g., MICH. COMP. LAWS ANN. [section] 600.2912a(b)(2) (West 2002); see also Alfonso v. Lund, 783 F.2d 958, 961 (10th Cir. 1986) (applying New Mexico law); Bromme v. Pavitt, 7 Cal. Rptr. 2d 608 (Ct. App. 1992); Clayton v. Thompson, 475 So. 2d 439,445 (Miss. 1985); Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206 (Md. Ct. App. 1990).

(2.) Joseph H. King Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L. J. 1353, 1354 (1981).

(3.) 741 P.2d 467, 474 (Okla. 1987).

(4.) See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 41, 45 (5th ed. Supp. 1988); see also Jorgenson v. Vener, 616 N.W.2d 366, 370 (S.D. 2000); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986).

(5.) Jorgenson, 616 N.W.2d 366, 370-71.

(6.) See e.g., Delaney v. Cade, 873 P.2d 175, 183 (Kan. 1994); Mayhue v. Sparkman, 653 N.E.2d 1384, 1389 (Ind. 1995); McKellips, 741 P.2d 467, 476; Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 591 (1991); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 685 (Mo. 1992).

(7.) Jeanes v. Milner, 428 F.2d 598, 605 (8th Cir. 1970); see also Jorgenson v. Vener, 640 N.W.2d 485, 491 n.4 (S.D. 2002) (Gilbertson, C.J., dissenting) (15 percent is substantial); Mays v. United States, 608 F. Supp. 1476, 1481 (D. Colo. 1985) (25 percent is substantial); O'Brien v. Stover, 443 F.2d 1013, 1018 (8th Cir. 1971) (30 percent is substantial).

(8.) See McKellips, 741 P.2d 467, 474; Perez, 805 P.2d 589, 592; Wollen, 828 S.W.2d 681, 683.

(9.) See, e.g., Borkowski v. Sacheti, 682 A.2d 1095 (Conn. Ct. App. 1996); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986); Hastings v. Baton Rouge Gen'l Hosp., 498 So. 2d 713 (La. 1986); Holton v. Mem'l Hosp., 679 N.E.2d 1202 (Ill. 1997).

(10.) See Margaret T. Mangan, The Loss of Chance Doctrine: A Small Price to Pay for Human Life, 42 S.D.L. REV. 279, 311 (1997).

(11.) Jorgenson, 616 N.W.2d 366, 372 (citing McKellips, 741 P.2d 467, 476-77); Wollen, 828 S.W.2d 681, 684.

(12.) See Alberts v. Schultz, 975 P.2d 1279, 1287 (N.M. 1999); Wollen, 828 S.W. 2d 681, 684-85.

(13.) 616 N.W.2d 366, 372 n.8.