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What is the ‘Loss of Chance’ Doctrine in Medical Malpractice Cases?

Posted on December 19, 2018 by Kelly Wolford

Traditionally, the plaintiff in a medical malpractice lawsuit must show that a medical professional’s negligence caused the person to suffer a specific injury. However, under another theory, a plaintiff can seek compensation if a doctor’s negligence diminished the plaintiff’s chance of survival. This is called the “loss of chance” doctrine.

The doctrine often applies in delayed diagnosis cases. For instance, it may apply when a doctor fails to diagnose cancer in time to treat it with a likelihood of success. Allowing cancer to spread from its point of origin to other parts of the body, or metastasize, greatly increases the chance that it will prove to be fatal.

If you or a loved one are dealing with a delayed diagnosis that has diminished your opportunity to beat cancer or another disease, the attorneys of Powers & Santola, LLP, can help you and your family to pursue compensation from the medical providers responsible for the unnecessary harm you have suffered.

What Does Loss of Chance Mean in a Medical Malpractice Claim?

Under the loss of chance doctrine, a doctor can be held liable for causing the patient’s loss of a chance to be cured if the doctor negligently fails to diagnose a curable disease, and the patient is harmed by the disease. Beyond the lost chance to be cured, a delay in diagnosis could deprive a patient of treatment that would have prolonged his or her life by years, months or even weeks.

For example, the survival rate for a cancer patient is based on the type of cancer and its stage, or the extent of its development. So, let’s say that a patient has a type of cancer with a 50 percent rate of survival when diagnosed at Stage 1. However, at Stage 3, the survival rate is 25 percent. If the patient could have been diagnosed at the earlier stage but is not despite presenting symptoms, then the patient has seen his or her chance of recovery unnecessarily diminished due to the doctor’s negligence.

Are All Injuries Compensatable in Medical Malpractice Claims?

Treatment for a later stage of cancer may also be more costly, invasive and painful than it would be if diagnosed and treated at an earlier stage. Under the loss of chance doctrine, these injuries could potentially be compensatable.

A delayed diagnosis is, unfortunately, a common preventable medical error. Failure to diagnose cancer or other diseases may be caused by a doctor who fails to:

  • Obtain a full medical or family history from the patient
  • Inquire about lifestyle or occupational risk factors for disease
  • Recognize the relevance of the symptoms which a patient presents
  • Order appropriate tests based on the patient’s symptoms
  • Accurately interpret results of tests which the doctor ordered.

In other cases, a failure of communication can lead to a missed diagnosis, such as the communication which should take place between a doctor and a lab technician who ran a requested test.

If any of these errors occurs and leads to an unnecessary delay in the diagnosis and treatment of a patient’s cancer, then the patient and/or family members have the right to pursue just compensation.

Elements Necessary to Establish the Loss of Chance

A medical malpractice claim asserts that a doctor or another medical care provider failed to exercise a standard of care equivalent to what other medical professionals would have provided under similar conditions and circumstances. A patient’s claim of loss of chance because of a delayed diagnosis must also establish actual harm specifically caused by the delayed diagnosis such as:

  • Diminished opportunity to survive
  • Increased pain and suffering
  • Increased cost of treatment
  • Loss of consortium.

Pursuing a case requires an expert’s review of medical records to determine whether negligence occurred. It may ultimately require an expert’s testimony to quantify and explain to a jury how a delayed diagnosis diminished a patient’s opportunity for a better medical outcome.

Three of New York’s four appellate courts, or departments, have held that a patient may recover compensation in a medical malpractice lawsuit if the patient can show a “substantial possibility” that negligence resulted in loss of a chance for a better outcome. The fourth court has ruled that compensation may be awarded for any loss of chance for a better outcome.

What Damages Can Be Awarded For My Medical Malpractice Claim?

Damages, or compensation, awarded in a medical malpractice case are determined by a jury if a negotiated settlement is not possible. In addition to economic damages for any additional costs of treatment in a delayed diagnosis claim, the jury must essentially weigh the value of the plaintiff’s life when it determines non-economic damages due to loss of chance. For instance, if the plaintiff’s opportunity to survive was reduced by 50 percent by his or her doctor’s negligence, the jury might award non-economic damages based on 50 percent of the value of the patient’s life.

As your advocate in a medical malpractice lawsuit, your attorney at Powers & Santola, LLP, would paint a picture to a jury of the life that has been taken away from you or a loved one because of a missed cancer diagnosis.

Ask Our Albany Medical Malpractice Attorneys About a Loss of Chance Claim

The medical malpractice lawyers of Powers & Santola, LLP, pursue malpractice lawsuits against medical providers in Albany, Syracuse, Rochester and throughout New York. You can count on us to provide the skilled and compassionate legal help that you need during difficult times.

Malpractice cases typically require lengthy investigations, which can cause New York’s statutes of limitations deadlines to become a factor. Don’t delay the start of your claim. An initial consultation is absolutely free. If you think the treatment which you or a loved one received from a medical professional in New York did not meet an appropriate standard of care, contact us today. We can answer your questions and seek the compensation that you and your family deserve.