HECTUS & STRAUSE PLLC

ATTORNEYS AT LAW
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Louisville, Kentucky 40223

memo
To: Mr. Hectus
Cc: Rachel
Date: June 7, 2005
Re: Research – “Loss of Chance” Doctrine

Assignment: Research the loss of chance doctrine and in doing so cite specific
jurisdictions that have not adopted the doctrine and their reasoning.

Jurisdictions that have not adopted the loss of chance doctrine:

1. Vermont
a. A case discussing Vermont’s reasoning re: the doctrine is Smith v. Parrot,
833 A.2d 843 (Vt. 2003).
In that case, the plaintiff filed a medical malpractice action against
his family practitioner after the plaintiff had lost motor control over his
left foot. The plaintiff alleged that the doctor should have advised him of
the need for a neurological examination. On appeal from a summary
judgment in favor of the physician, one of the plaintiff’s contentions was
that “the trial court should have departed from the traditional causation
standard to allow recovery based on evidence that Dr. Parrot’s failure to
procure an immediate neurological examination reduced plaintiff’s
chances of recovery, even if the evidence failed to show a likelihood that it
was the cause of his injuries.” Plaintiff was basically relying on the “loss
of chance” doctrine.
In discussing the loss of chance doctrine, the court cited the
reasons given in support of the doctrine, as well as the reasons why some
jurisdictions have refused to adopt the doctrine. One of the major policy
arguments in favor of the doctrine is the “harshness of the traditional
rule in denying recovery even in cases where a doctor’s negligence may
have significantly reduced the plaintiff’s chances of recovery.” Further,
the court noted other policy arguments such as the “inherent worth of a
chance of recovery, no matter how small, as a compensable interest; and
the deterrent value in penalizing a poor prognosis, even if it reduced the
plaintiff’s chances of recovery by less than fifty percent.”
The court then began its discussion of jurisdictions that have
refused to adopt the doctrine. The court started by noting that “the
traditional causation standard in medical malpractice-as in tort law
generally-“still commands substantial support.” The court followed by
citing jurisdictions that have rejected invitations to adopt the doctrine to
allow recovery in a case like the present one where the defendant’s
negligence was not shown to have been the likely cause of injury. (The
jurisdictions cited: Alaska, Alabama, District of Columbia, Florida, Idaho,
Maryland, Minnesota, South Carolina, Tennessee, Texas). The policy
arguments given for not adopting the doctrine include:

the anomaly and unfairness of applying a lower causation

standard to health care providers than other professionals;
the risk of increasing the number of successful claims and
thereby elevating the price of malpractice insurance and
health care costs in general, as doctors are forced to
practice “defensive” medicine; and the illusion of
deterrence where it cannot be shown that the defendant in
fact caused the injury.

After giving the arguments for not adopting the doctrine, the court
proceeded to go through the requirements for establishing medical
malpractice in Vermont, citing the relevant statute, namely, 12 V.S.A. §
1908. In short, the statute provides that a plaintiff shall have the burden of
proving: (1) the degree of knowledge/skill possessed/degree of care
exercised by a health care professional, (2) that the defendant lacked this
degree of knowledge/skill/or failed to exercise this degree of care, and (3)
that as a proximate result, the plaintiff suffered injuries that would not
otherwise have been incurred.
The court then began its rejection of the doctrine by stating:
“The loss of chance theory of recovery is thus fundamentally at odds
with the settled common law standard, codified in 12 V.S.A. § 1908(3),
for establishing a causal link between the plaintiff’s injury and the
defendant’s tortious conduct.” According to the statute, “an act or
omission of the defendant cannot be considered a cause of the plaintiff’s
injury if the injury would probably have occurred without it.” Thus, since
in this case the injury would have occurred anyway, the summary
judgment in favor of the doctor was correct.
The court in this case declined to depart from the statutory
requirements and adopt the loss of chance doctrine for a number of
reasons. Because the doctrine is a significant departure from the
causation aspect of tort law, the court stated that there were fundamental
questions

“about its effect on not only the cost, but the very practice
of medicine in Vermont; about its effect on causation
standards applicable to other processions and the
principles-if any- which might justify its application to
medicine but not other fields such as law, architecture or
accounting; and ultimately about the overall societal costs
 which may result from awarding damages to an entirely
new class of plaintiffs who formerly had not claim under
the common law in this state.

In sum, the court believed that a decision to accept the loss of

chance doctrine, because of its broad policy concerns, should be left to the
Legislature.

2. South Carolina
a. A case discussing South Carolina’s reasoning re: the doctrine is Jones v.
Owings, 456 S.E.2d 371, (1995).
In this case, a licensed physician and specialist in orthopaedic
surgery treated decedent for a fractured left femur. After this treatment,
the decedent had a couple of chest x-rays, which apparently showed an
abnormality in the left upper lung. It was alleged that after these reports,
Dr. Owings took no action. In September 1989, decedent was diagnosed
with lung cancer and she ultimately died in 1990.
The personal representative of decedent’s estate brought a
wrongful death and survival action. The trial judge granted the
physician’s motion for summary judgment. On appeal, the personal
representative contended that the decedent’s injury was her “loss of
chance of survival” rather than her death, and that the trial judge erred by
applying the “most probably” standard to the decedent underlying disease
and death, rather than to the injury itself.
After a discussion on the three approaches adopted regarding the
“loss of chance” doctrine, the Supreme Court of South Carolina declined
to adopt the doctrine. The Court’s reasoning was that the doctrine “is
fundamentally at odds with the requisite degree of medical certitude
necessary to establish a causal link between the injury of a patient and
the tortuous conduct of a physician.” Further, the court noted that
[l]egal responsibility in this approach is in reality assigned based on the
mere possibility that a tortfeasor’s negligence was a cause of the ultimate
harm.” The Court concluded by stating: “This formula is contrary to
the most basic standards of proof which undergird the tort system.”

3. Tennessee
a. A case discussing Tennessee’s reasoning re: the doctrine is Kilpatrick v.
Bryant, 868 S.W.2d 594 (Tenn.1993).
Issue: Whether a cause of action for “loss of chance” is cognizable
in Tennessee?
Holding: No. “There can be no liability in a medical malpractice
case for negligent diagnosis or treatment that decreases a patient’s
chances of avoiding death or other adverse medical condition
where the death or adverse medical condition would probably have
occurred anyway.”
Analysis:
 The Court gives a broad overview of causation and
proximate cause. The Court also gives a historical account of the
case in which the “loss of chance” doctrine originated—apparently
the discussion in that case regarding the doctrine was considered
dicta, and not binding on the courts, but several courts took that
language and ran.
In subsection (3) of the opinion, the Court cites the
jurisdictions which have rejected loss of chance, noting that many
of those courts “raise the objection that ‘recognition of mere
chance as a recoverable item of loss fundamentally contradicts the
essential notion of causation.’” (citations omitted). The Court
states:

Jurisdictions adhering to this view do so because

plaintiffs ought to be required to show that the
negligence more likely than not was the cause in
fact of the unfavorable medical result. In other
words, recovery is disallowed unless it can be
shown that the plaintiff would not have suffered the
physical harm but for the defendant’s negligence,
i.e., that it is more probable than not (greater than
50 percent) that but for the negligence of the
defendant the plaintiff would have recovered or
survived. (citations omitted)

The Court quotes Chief Justice Riley of the Michigan

Supreme Court in her dissenting opinion in Falcon v. Memorial
Hospital, 462 N.W.2d 44 (1990):

The ‘lost chance of survival’ theory urged

by plaintiff represents not only a redefinition
of the threshold of proof for causation, but a
fundamental redefinition of the meaning of
causation in tort law.

The Court then goes through the negative aspects of

recognizing the doctrine, quoting a Florida case, Gooding (case is
included in this memo):

Relaxing the causation requirement might correct a

perceived unfairness to some plaintiffs who could prove the
possibility that the medical malpractice caused an injury but could
not prove the probability of causation, but at the same time could
create an injustice. Health care providers could find themselves
defending cases simply because a patient fails to improve or where
serious disease processes are not arrested because another course
 of action could possibly bring a better result. No other
professional malpractice defendant carries this burden of liability
without the requirement that plaintiffs prove the alleged negligence
probably rather than possibly caused the injury. We cannot
approve the substitution of such an obvious inequity for a
perceived one. The lost chance of survival theory does more than
merely lower the threshold of proof of causation; it fundamentally
alters the meaning of causation. The most fundamental premise
upon which liability for a negligent act may be based is cause in
fact. (Citation omitted.) An act or omission is not regarded as a
cause of an event if the particular event would have occurred
without it. (Citation omitted.) If the defendant’s acts did not
actually cause the plaintiff’s injury, then there is no rational
justification for requiring the defendant to bear the cost of the
plaintiff’s damages.

The Court notes that “[r]ather than deterring undesirable conduct,

the rule imposed only penalizes the medical profession for inevitable
unfavorable results. The lost chance of survival theory presumes to know
the unknowable. (citation omitted).

4. Rhode Island
a. A case discussing Rhode Island’s reasoning re: the doctrine is
Contois v. Town of West Warwick, 865 A.2d 1019 (R.I. 2004).
This case has a brief historical background of the “loss of chance”
doctrine. However, the case itself is of little guidance as the court
determines that the facts of the case could not be reconciled w/ the
application of the loss of chance doctrine. Thus, the court basically held
the doctrine inapplicable, without rejecting it.

5. Alaska
a. A case discussing Alaska’s reasoning re: the doctrine is Crosby v.
U.S., 48 F.Supp.2d 924 (D. Alaska 1999).
Issue: Whether a claim for “loss of chance” may be
maintained in a medical malpractice action under Alaska law?
(Since there is no reported Alaska decision on point, the court must
predict how it thinks the Alaska Supreme Court would decide the
question.)
Holding: This court is persuaded that the Alaska Supreme
Court would not recognize an action for “loss of chance” in a
medical malpractice setting. At least 5 reasons support this
conclusion:

(1) The “loss of chance” theory disrupts traditional causation

principles set forth by statute in Alaska.
(2) The “loss of chance” doctrine in medical malpractice
cases involves significant and far-reaching policy concerns affecting the quality
and cost of health care which are best left to the Alaska State Legislature to
address and resolve.
(3) Crosby (the plaintiff) has not identified the specific
parameters of her “loss of chance” theory.
(4) Crosby’s action is a wrongful death suit. There is one
compensable injury in a wrongful death action, and that is the death itself.
(5) The Alaska Supreme Court would find decisions such
as those made by the Texas Supreme Court in Kramer and the Maryland Court of
Appeals in Fennell and the arguments summarized in section A.1 above to be
more persuasive than decisions adopting some form of loss of chance and the
arguments summarized in section A.2 above.
* In addition, the adoption of any version of “loss of
chance” seems particularly ill-suited to a state like Alaska
where medical care must be delivered in remote locations
which cannot make all potentially beneficial tests and
procedures available at anything approaching a reasonable
cost.

(Citations omitted)

Analysis: This case gives an excellent overview of the “loss of

chance” doctrine. It also cites the jurisdictions which have accepted or
rejected the doctrine—footnotes 13, 14,15 & 16.
The case gives the arguments opposed to “loss of chance”(A-1)
and the arguments in favor of the doctrine (A-2). Citing one
commentator, Daniel J. Anderson, ‘Loss of Chance’ in Utah, 9-NOV Utah
B.J. 8, 11 n. 6 (1996), the court lists the primary arguments opposing the
“loss of chance” doctrine as follows:
1. Health care providers may be liable for non-negligent
errors of judgment if patients don’t improve.
2. More cases would be filed because there is always a
chance of a better outcome.
3. Increased litigation would increase malpractice
premiums and consumers will ultimately bear the increased costs.
4. “Loss of chance” creates a rebuttable presumption
which performs much like a strict liability standard.
5. Medicine is not an exact science and it is impractical to
require the medical profession to act as such.
6. The standard allows plaintiffs to recover even though
they have little proof.
7. The tort system was never intended to compensate for
every injury.
8. “Loss of chance” may not be a deterrent to negligence.
There is little value in extracting a penalty from a party if it cannot be shown that
the party in fact caused the result.
9. It is improper to assume that heath care providers will
not provide good treatment to the critically ill.
10. There will be excessive reliance on statistics at the
causation stage. This is problematic since statistics are often unreliable and can
mislead and be manipulated.
11. Significant changes in tort law should be left to
legislatures.
12. Relaxing the standards of causation merely increases the
plaintiff’s odds of receiving all-or-nothing but provides no greater justice.
13. The 3 guiding principles of tort liability: (1)
compensation and loss-spreading, (2) fairness between the parties and (3)
deterrence of behavior, are not improved by the “loss of chance” doctrine. When
applied, “loss of chance”: (1) creates more errors in loss-spreading, (2) fairness
between the parties is not satisfied, and the associated deterrence is
unsubstantiated.
14. Health care providers will feel compelled to engage in
extensive and perhaps unnecessary testing merely to combat the threat of
malpractice.

The court here states that:

“adoption of a ‘loss of chance’ theory would contravene the

clear and unambiguous language of AS 09.55.540
(Alaska’s statute), in at least 2 ways. First, AS 09.55.540
unambiguously requires plaintiffs to establish malpractice
by a preponderance of the evidence. The “loss of chance
doctrine relaxes this causation standard. Plaintiffs could
recover even when it was not more likely than not that any
alleged malpractice caused injury. Second, AS 09.55.540
unambiguously rejects any presumption of negligence. The
‘loss of chance’ doctrine, however, would permit plaintiffs
to pursue claims even when the defendant’s action was
unlikely to cause injury, so long as it reduced the chance of
recovery (e.g., failure to employ a particular procedure
reduced chance of recovery from 10 percent to 5 percent).
. . . .In other words, allowing recovery for the ‘loss of
chance’ allows recovery of at least some damages on
account of a physical injury which probably was not caused
by a defendant’s negligence.
(citations omitted)

6. Florida
a. A case discussing Florida’s reasoning re: the doctrine is Gooding
v. University Hospital Building, Inc., 445 So.2d 1015 (Fl. 1984).
Issues: (1) Whether plaintiff in a wrongful death action
must prove that more likely than not the death was caused by
defendant’s negligence; (2) Whether a theory of recovery for loss
of a chance to survive predicated upon alleged medical malpractice
is actionable in Florida?
Holdings: (1) Yes. (2) No. Loss of a chance to survive is
not actionable in Florida. “A plaintiff in a medical malpractice
action must show more than a decreased chance of survival
because of a defendant’s conduct. The plaintiff must show that the
injury more likely than not resulted from the defendant’s
negligence in order to establish a jury question on proximate cause.
In other words, the plaintiff must show that what was done or
failed to be done probably would have affected the outcome.”
(Citation omitted)
Analysis: The Supreme Court of Florida’s reasoning is
best summed up in the quote under “Tennessee” heading.