Legal Report: Patients Now Sue for "Loss of Chance"

Courts disagree on patients’ ability to get money for losing less than a 50 percent chance of recovery due to delays in treatment or diagnosis.

Commentators

• Carol Kelly, JD; Murray, Kelly, and Bertrand, PC; Woburn, MA

Transcript

Courts across the country are currently debating a legal issue of whether a patient should be allowed to recover damages for something called “loss of a chance.” Defense attorney Carol Kelly, of Murray, Kelly and Bertrand in Woburn, Massachusetts explains how plaintiffs are arguing for compensation that they couldn’t get in the past.

In order to recover damages in a medical malpractice case, a patient must prove that their health care provider was negligent – meaning he or she failed to follow the appropriate standard of care – and also prove “causation,” meaning that there is a “causal link” between that negligence and patient’s injury or harm.

A clear-cut illustration of causation would be a situation where a physician knows that a patient is allergic to aspirin, but mistakenly writes hospital orders that include aspirin. If the patient receives the aspirin and suffers an adverse reaction, then there would be a causal link between the doctor’s negligence and the resulting harm, and the patient could recover money damages. Sometimes courts can find that the provider was negligent but did not cause the patient’s bad outcome. An aspirin overdose, for example, would not have caused a patient’s diabetes.

But in many cases, the causal link between negligence and injury is not this clear cut.  Often, causation can be very difficult to prove because the harm that the patient suffers represents the natural progression and consequences of a disease or condition - and the physician clearly did not cause the patient to develop that disease or condition. Under traditional American jurisprudence, the plaintiff must prove that the negligence more likely than not caused the harm. This boils down to a better than 50 percent chance that the injury was the result of the negligence.

The question in a “loss of chance” argument is ‘Can patients who can prove that their doctor was negligent, but can’t prove that the negligence more likely than not caused the patient’s bad outcome still get compensation?’

Loss of chance claims usually arise when the patient is already suffering from a disease at the time of the claimed malpractice.  For example, a patient diagnosed with colon cancer may claim that her doctor negligently failed to order a colonoscopy that would have led to an earlier diagnosis.  Under the usual legal causation rule, in order to recover damages, that patient would also have to prove that she had a better than 50 percent chance of surviving the cancer had it been diagnosed in a timely fashion, and that her odds dropped to below 50 percent as a result of the delay in diagnosis.

But what if her odds of survival would have been 30 or 40 percent? Can she be compensated for losing that 30 percent chance?

Some courts have decided that the traditional rule is too strict in some circumstances, and it unfairly requires the patient to prove too much. For example, what if the patient would have had a 45 percent chance of survival with a timely diagnosis, but those odds decreased to 10 percent because of the doctor’s negligence?  The patient was probably going to die regardless of the timing of the diagnosis, but the negligent delay in diagnosis took away almost any chance for a cure.

Allowing the patient to recover damages for that “loss of chance” requires the court to create an exception to the strict causation rule. This legal question remains undecided in many states, including Massachusetts. Some courts have decided that public policy warrants making an exception in some cases.  Other courts refuse to vary from the traditional rule. Even where loss of chance damages are allowed, though, if the reduction in the chance for a cure is very small, or de minimis, the patient usually will not be permitted to recover damages.

At the same time that the courts are grappling with the concept of loss of chance damages, the medical world’s knowledge of cancer and other diseases continues to evolve at a rapid pace.  Currently, claims for “loss of chance” rely upon percentages developed through studies – since there is no way to know whether a specific patient lost a specific likelihood of a better outcome.

The future of “loss of chance” claims in the courts ultimately may depend on developments in medicine…and new knowledge about  how cancer and other diseases progress in specific individuals.