Lost Chance Doctrine in Medical Malpractice Cases: Evolving Standards of Proof and Damages Formulas

Description

Unique to medical malpractice, "loss of chance" or "lost chance" theories arise when a doctor's negligence more likely than not deprives the patient of a chance or possibility of a better outcome. Most states that have considered the question have endorsed the loss of chance doctrine in one form or another.

But the law on loss of chance is in flux as more courts abandon the traditional all-or-nothing rule. The law is difficult to navigate due to the different approaches taken by courts around the country. Counsel must recognize when the doctrine is one of causation and when it is one of damages. Calculating damages in such cases is complicated as some courts now take a proportional damages approach.

Further, there remains uncertainty as to whether loss of chance represents a distinct claim that must be specifically pled or whether it is simply an alternative item of damages in the plaintiff's traditional negligence claim--and the answer dictates whether certain defenses are available or not.

Jury instructions can be misleading or confusing for a jury considering a "lost chance" case. Counsel must challenge those and offer substitutes. Furthermore, counsel need to know the exact burden of proof and how damages are calculated.

Listen as the experienced panel of medical malpractice counsel from both the plaintiff and defense sides offers ways to maximize or minimize the loss of chance doctrine in medical malpractice cases.