The Doctrine of Loss of Chance
Failure to diagnose has long been a leading cause of action in medical malpractice cases. This has been particularly true for claims against primary care physicians in cases involving cancer. Raising the stakes to greater levels of liability for doctors is the growing legal threat called “loss of chance.”
The loss of chance doctrine seeks to compensate a plaintiff for injuries resulting from the diminished likelihood that the outcome would have been better had some act or omission of medical care not occurred. Typically, the plaintiff represents that the injuries caused by a disease or condition, usually cancer, become more severe the longer a diagnosis is delayed and thus the prospect (or “chance”) of a cure or longer life decreases.
The doctrine of loss of chance was introduced into America’s common law in 1868 when a New York court was faced with a contract breach by a landowner who went back on his promise to allow a farmer to use the land. In Taylor v. Bradley, the court ruled that the farmer was being deprived of his chance for profit. The doctrine subtly moved forward with approval through American treatises and case law and is becoming a growing category of medical malpractice litigation.
Usually a doctor is held liable for diagnostic delay or failure only if that failure is found to be a substantial factor in a patient’s injury or death. However, courts in an increasing number of states have adopted the doctrine of loss of chance. Under this doctrine, the doctor can be held liable for depriving the patient of a significant chance of a better outcome, including survival.
A common expression of the doctrine allows for the full recovery of damages if a patient had a 50 percent or greater chance of a better outcome and allows a proportional recovery of damages if a patient’s chance of a better outcome was less than 50 percent. For example, if at the time of a failure to diagnose, a patient had a greater than 50 percent chance of survival with a prompt diagnosis, that patient would recover full damages in a case. If the patient had a 40 percent chance of survival at the time of failure to diagnose and that chance was diminished to 20 percent, the patient could still recover proportional damages.
Those judges adopting loss of chance say that they believe it to be a fairer doctrine. Twenty-two states recognize some form of the principle, and a number of states have cases pending that may lead to the doctrine’s adoption. States have adopted a wide range of different percentage criteria and a threshold for a loss of chance constituting a recoverable injury that varies from “substantial” to “appreciable.”
A few state courts have held that the loss of chance to survive in alleged medical malpractice cases is not actionable. In some of these states, new cases are pending to seek a reversal of the previous decision.
Federal Issues
The 109th Congress adjourned without the passage of any medical liability reform. For the 10th time since 1995, the House passed the needed legislation, but the Senate did not get the 60 votes required to stop a filibuster.
Measures on health information technology failed in both houses during this session. H.R. 6289 (Kennedy of Rhode Island), the Personalized Health Information Act of 2006, was introduced on September 29. The bill provides financial incentives for physicians to encourage their patients to create personalized electronic health records.
H.R. 420 (Smith of Texas) would have made attorney sanctions mandatory for filing frivolous claims, but it was never taken up by the Senate. The same fate awaited S. 1337 (Enzi of Wyoming), which would have provided grants to states to establish alternative reform models such as health courts.
The House Energy and Commerce Committee’s Subcommittee on Health held a public hearing in mid-July to examine innovative solutions in the delivery of health care. Advocates for special medical courts testified, as well as individuals espousing disclosure programs (often called “I’m Sorry” programs). Chairman Nathan Deal (Georgia) will continue meeting with representatives from organized medicine, HMOs, pharmaceutical companies, and the insurance industry to forge new directions for exploration in the next Congress.
Recent State Court Actions
The Florida Supreme Court decided lawyers may ask their clients to waive their rights under the state’s constitution and pay their lawyers more in fees than the limits provided under law. The court set the terms of how individuals may waive their rights to the caps and gave the clients three days to change their minds.
A Louisiana Third Circuit Court of Appeals panel ruled three to two that the state’s cap of $500,000 on medical malpractice awards was unconstitutional. The ruling was based on the fact that $500,000 is worth far less now than it was when the damage cap was originally enacted in 1975. This, the panel said, deprives patients of their right to adequate legal remedy for injuries. This decision will most likely bring a request from the defendants for a rehearing by the full Court of Appeals and possibly an appeal to the Louisiana Supreme Court.
Under current law, physicians covered by the state patient compensation fund pay the first $100,000 of a malpractice judgment, and the state fund covers the other $400,000 plus future medical expenses as they occur.
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