The Lost Chance Theory of Recovery

• Publication year: 1998
• Pages: 85
• Citation: Vol. 27 No. 11 Pg. 85

27 Colo.Law. 85 Colorado Lawyer 1998.

1998, November, Pg. 85. The Lost Chance Theory of Recovery

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85

Vol. 27, No. 11, Pg. 85

The Colorado Lawyer
November 1998
Vol. 27, No. 11 [Page 85]

Specialty Law Columns
Health Law Forum
The "Lost Chance" Theory of Recovery
by J. Stephen Phillips

This column is prepared by the Health Law Section of the Colorado Bar Association. Lawyers representing clients in the health care industry are encouraged to submit articles to the column editor for publication. This month's article was written by Judge J. Stephen Phillips of the Denver District Court. Judge Phillips was the trial judge in the Boryla case discussed in this article

Column Ed.: Cathy Sparkman of Condert Brothers, Denver, (303) 607-0888

Editor's Note:The recent Colorado Supreme Court case of Boryla v. Pash, discussed in this article, is expected to have a substantial impact in the area of medical malpractice in Colorado. For a related article on the Boryla case, see the "Tort and Insurance Law Reporter" at page 95 in this issue of The Colorado Lawyer

Over approximately the last twenty years, jurisdictions other than Colorado have seen a flurry of judicial activity concerning the "lost chance" theory of recovery. Under this theory, a plaintiff seeks damages from a health care provider whose negligent treatment has reduced the plaintiff's likelihood of recovering from an ailment or affliction. On June 15, 1998, the Colorado Supreme Court decided Boryla v. Pash1 and, for the first time, recognized a diminished chance of survival as actionable in Colorado, at least in a limited context. Significantly, in reversing the decision of the Court of Appeals, the Colorado Supreme Court joins a growing minority of jurisdictions that have acknowledged a cause of action where the malpractice has resulted in a less favorable prognosis for the plaintiff, even though the ultimate outcome of the plaintiff's ailment may not yet be known.

Lost Chance Theory in
Other Jurisdictions

The cases that address the lost chance theory of recovery virtually always arise in a medical malpractice context in which some action or inaction by the practitioner has exposed the plaintiff to greater risk of disability or death but did not cause the underlying ailment that is the real source of the plaintiff's medical problems. These "lost chance" cases do not deal with circumstances in which the malpractice is the major cause (that is, more than 50 percent) of the ailment. That is a standard malpractice case. Instead, they address the circumstances in which expectation of a favorable medical result has been marginally reduced (that is, less than 50 percent).2

Such "lost chance" cases arise in two contexts: (1) where the occurrence of malpractice results in a known quantitative reduction in a favorable prognosis, but only time will tell what the plaintiff's ultimate outcome will be, and (2) where the patient has suffered the dreaded result (often death) and damages are sought on the grounds that the malpractice may have contributed to the calamity.

Courts have been more willing to adopt the "lost chance" theory in the latter situation, although few courts have articulated a distinction between the two. Thus timing of the case may determine a particular jurisdiction's acceptance or rejection of loss of chance as a viable action. The leading proponent of a "lost chance" cause of action, in an article in the Yale Law Journal, seems to assert that damages should be awarded in either situation, based on the total damages suffered or which would be suffered in the event of a future bad...