Section 13 Lost Chance Cases Generally

• Library: Damages 2012

In a landmark decision in 1992, the Supreme Court of Missouri first recognized a cause of action for “loss of a chance” of recovery or survival in medical malpractice actions. See Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo. banc 1992). As a result, Missouri plaintiffs may now receive compensation for a reduction, resulting from a doctor’s negligence, in their “chance” for a more favorable outcome, even if that chance is less than 50%. Id.

Before Wollen, 828 S.W.2d 681, the Missouri bench declined to address loss of chance as a means of recovery. See, e.g., Grippe v. Momtazee, 696 S.W.2d 797 (Mo. banc 1985) (failure to diagnose cancer case was decided on issues unrelated to recognition of the disease). “Lost chance” cases usually arise in the context of a failure to diagnose or treat an illness or to refer a patient for additional treatment. The plaintiff typically has an underlying medical condition that goes undiagnosed or untreated, further aggravating or worsening the plaintiff’s condition or future prognosis and often leading to a sooner death. The standard defense to a lost chance claim is that the health care provider did not cause the underlying problem and, therefore, should not be liable for the outcome. The counter argument is that the physician’s failure to timely diagnose or treat the illness with the requisite degree of skill and learning adversely affected any substantial chance of curing the problem or postponing the ultimate outcome. Simply stated, plaintiffs assert that a defendant’s failure that eradicates a plaintiff’s...