Lost chances, felt necessities, and the tale of two cities.

• Author: Weigand, Tory A.

"It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair, we have everything before us, we had nothing before us...."

A Tale of Two Cities, Charles Dickens

1. INTRODUCTION

   Courts have been increasingly asked to expand physician liability for loss of statistical chances of survival or better outcome. (2) The request has been made pursuant to the perceived right of the judiciary to conform the common law to the changing needs or the "felt necessities of the time." (3) The loss of chance doctrine raises fundamental questions as to the appropriate limits of judicial policymaking in the area of physician liability. indeed, recognition of loss of chance as either a theory of causation or a cognizable harm marks a notable judicial expansion of physician liability with significant ramifications for both tort law and health care in general. (4)

   The two state supreme courts to have last addressed the issue reached polar opposite conclusions despite strikingly similar facts and medical issues. (5) While the two decisions are perhaps a poor comparison to Dickens's masterful Aeschylean tragedy, set amid the fortunes and misfortunes of Paris and London in 1775, they do depict "a tale of two cities" as to physician liability. Reduced to their core, the decisions represent the divergent views of the judiciary's common-law authority and demonstrate the debate over the proper limits to judicial expansion of physician liability based on the "public policy" auspices of the common law. (6)

   Parts II and III of this article provide an overview of the fundamental components of the common-law tradition and their application to physician tort liability. They focus on the forces of stability and flexibility underlying the debate as to judicial policymaking, represented by the competition between the desire to ensure the common law conforms with the times and the prudential concerns underlying the separation of powers. Part IV discusses the need for courts, in considering whether to abrogate existing rules and expand liability, to expressly address and recognize their institutional limitations, as well as to limit any such abrogation or expansion to only those instances where existing precedent is "intolerable" and there is a true societal consensus as to changing needs. Part V overviews loss of chance, and the existing judicial and legislative treatment of the doctrine. Part VI examines loss of chance in terms of the state of the relevant medical science, societal consensus, and the underlying policy debate. Finally, Parts VII and VIII compare the two recent state supreme court decisions in Kentucky and Massachusetts that capture the divergent views on judicial policymaking as to loss of chance and expansion of tort liability in general.

2. THE COMMON-LAW TRADITION AND "THE FELT NECESSITIES OF THE TIME"

   The common-law tradition describes the judiciary's practice of adjudicating disputes based on prior court announcements, as distinguished from legislative enactments, codes, or texts. (7) This judge-made law (8) has been said to "embrace that great body of unwritten law founded upon general custom, usage, or common consent, and based upon natural justice or reason." (9) According to the famous passage by Holmes:

   The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed and unconscious, even the prejudices which judges share with their fellow men, have more to do than the syllogism in determining the rules by which men should be governed. (10) The common law has thus held to many a somewhat exalted status as

   [i]t is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs, but is rather the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of human affairs. (11) Other commentators are more subdued stating that "the common law does not possess some enduring or essential core that transcends its historical elaboration; there is nothing more (or less) to the common law than the on-the-move and seat-of-the-pants workings of its own development." (12)

   Not surprisingly, in considering new extensions of tort law, courts state their public policy obligation expressly: assessing and determining "contemporary attitudes and public policy." (13) Public policy considerations thus drive and determine how any particular case is decided. Not only are tort law's fundamental components of duty of care, causation, and damages all matters heavily imbued with public policy but generally and "more than any other branch of the law, the law of torts is a battleground of social theory" and policy. (14) The imposition of new tort liability, and allowing for the award of damages never before recognized, thus inevitably involves the weighing of interests and policy. (15) While the public policy function of the judiciary in common-law tort adjudication is undeniable, its sources and boundaries are ill-defined and illusive. This is due, in part, to the fact that identifying and defining the underlying policy considerations in individual cases is the inventive part of the common-law decision.

   The common-law tradition evolved to include the judicial practice of deciding issues of first impression by drawing upon past and present judicial experience and other sources for resolution. (16) Many common-law courts of highest resort have declared that they have the power and duty to modify, overrule, or change existing common law to conform to the changing conditions of society. (17) They declare that when the common law is out of step with the times, they have the responsibility to change that law, particularly where the legislative branch has been silent on the issue. (18) "[T]he common law today is not a frozen mold of ancient ideas, but such law is actual and dynamic and thus changes with the times and growth of society to meet its needs" (19) and "principles of law which serve one generation well may, by changing conditions, disserve a later one." (20) Thus, the common law evolves because "the need for stability in law must not be allowed to obscure the changing needs of society or to veil the injustice resulting from a doctrine in need of reevaluation." (21)

   The changing needs or, as Holmes called them, the "felt necessities of the time" is, at once, the most intriguing and most concerning component of the common-law analysis. This component necessitates judicial assessment of the state of social needs and customs as well as, at times, science and technology. It stems from the notion that rooting the common law to existing standards "provides an added and needed source of legitimacy" (22) and that while the "[common] law must be stable ... it cannot stand still." (23) Accordingly, where tort law is no longer compatible with the realities or attitudes of modern society or in keeping with the advances of science or technology, adoption of a new rule or change in existing precedent has been found to be warranted if otherwise consistent with tort principles. (24)

   The difficulty is that one may reasonably question whether it is a court's role to proclaim that there has been a societal change mandating judicial alteration of law. (25) A judicial assessment and conclusion as to the status of societal customs, needs, and changes for purposes of addressing whether the common law is out of step with the times can result in unwarranted judicial policymaking. Assessment of the efficacy or consensus of medical advances and technology in the confines of a lawsuit between discreet parties may not be fairly done. The fundamental limitations of the common-law time continuum remain principles underlying the separation of powers.

   The separation of powers embodies the principle of judicial restraint. It recognizes the inability and undesirability of the judiciary substituting its notions of a correct policy for those of a popularly elected legislature. (26) Courts are not to legislate under the guise of interpretation, are to give great weight to the rule of law, and are to defer to the elected branches except when the branches act unconstitutionally. (27) This principle recognizes the institutional and functional limitations of the judiciary. It recognizes that the legislature is the policymaking arm of the government, especially where expansion of liability raises serious social consequences. It forms, at least in theory, an important limitation upon the judicial public policy power including physician liability expansion under the common law.

   The institutional limitations of the judiciary underpinning separation of powers principles are substantial. (28) Judges and the case-specific adjudicatory system are poorly designed for broad policymaking. (29) "Asking judges to make and implement broad social policy is a little bit like using your lawn mower to cut your hedge." (30) Indeed, "[t]he first thing the courts have to learn is how little they know." (31) This has been a longstanding objection with one of its most notable proponents stating:

   [The judicial process] is also too remote from conditions, and deals case by case, with too narrow a slice of reality. It is not accessible to all the varied interests that are in play in any decision of great consequence. It is, very properly, independent. It is passive. It has difficulty controlling the stages by which it approaches a problem. It rushes forward too fast, or it lags; its pace hardly ever seems just right. For all these reasons it is, in a vast complex. changeable society, a...