Section 15 Harm Suffered—Measure of Damages

• Library: Damages 2012

The harm suffered by a plaintiff in a “lost chance” case is not the loss of life or limb. The harm is the lost chance of recovery itself. Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 684 (Mo. banc 1992). In the liability phase of a case, the plaintiff must establish that the defendant’s negligence deprived the plaintiff of a chance to recover or survive. When determining damages, the amount is expressed by multiplying the value of the lost life or limb by the chance of recovery lost. See William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 263–69 (1987). The recognized method of computing damages fairly compensates the plaintiff only for the damage that the defendant caused or contributed to cause—the loss of the chance to survive, improve bodily condition, or enjoy a lengthened life span.

Example: The plaintiff has breast cancer. The defendant fails to properly or timely diagnose the plaintiff’s breast cancer. If the defendant had timely and accurately diagnosed the plaintiff’s cancer, the plaintiff would have had a 50% chance of a five-year survival. As a result of the defendant’s negligence, the plaintiff has a 25% chance of survival.

To determine the amount of damages in this example, the plaintiff must put forth evidence of the monetary value of the damages for the plaintiff’s anticipated five-year survival. For purposes of special damages, the plaintiff would receive 25% of that amount—the percentage equivalent to what the...