Loss of Chance Damages Brought to Life
| Publication year | 2012 |
| Pages | 20 |
Vol. 25, No. 1. 20. Loss of Chance Damages Brought to Life
Volume 25 No. 1
Jan/Feb 2012
Introduction
In 2005 the Utah Supreme Court reversed a widely held belief -that loss of chance was not a viable tort theory - with its holding in Medvedv. Glenn, 2005 UT 77, 125 P.3d 913. While the court's decision and language in dicta could be understood to mean that loss of chance always was a viable theory, the court nevertheless declared that its holding in Medved "should be applied only prospectively," in order to "avoid the substantial injustice that may otherwise flow from [the decision]." Id. at ¶ 17.
The clarification that Medved provided opened up a whole new world in the area of medical malpractice tort law: loss of chance as a distinct element of damage. For this reason, it is important for legal practitioners, patients, and physicians alike to understand the wide scope of this tort theory. Much of it is unexplored as of yet. For example, in what situations can loss of chance occur? What should be considered in quantifying the damage incurred when a chance is lost? How should a jury be instructed on this point? These and similar questions require exploration.
Traditional Malpractice
Medical malpractice is a claim for negligence. A showing of negligence requires four things. There must have been (1) a legal duty, (2) a breach of the legal duty, (3) proof that the breach was the probable cause of the injury at issue, and (4) actual damages. In other words, "[n]egligence is the failure to do what a reasonable and prudent person would have done under the circumstances, or doing what such person under such circumstances would not have done. The fault may be in acting or omitting to act." Meese v. Brigham Young Univ., 639 P.2d 720, 723 (Utah 1981).
Using this formulation, traditional medical malpractice cases hinged on the "all or nothing rule." Matsuyama v. Birnbaum, 890 N.E.2d 819, 829 (Mass. 2008). Under this rule, a plaintiff could only prevail if he or she could show that a physician's negligence more likely than not caused the injury or death. If so, the plaintiff was awarded full damages. If not, however, the plaintiff would recover nothing. In layman's terms, this rule ensured that a patient with a preexisting condition that gave him or her a less than even chance of survival could never prevail against a physician with a claim for negligence. See id. at 829-30. In such cases, because it would be impossible to show that any act of the physician was the more than likely cause of the damage - even if there were actions that severely decreased the patient's chances - the causation requirement would fail and the patient would recover nothing. See Massachusetts Supreme Judicial Court Accepts Loss of a Chance in Medical Malpractice Suits. - Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008), 122 Hary. L. Rev. 1247, 1247 (2009). This "all or nothing rule" provided a virtual shield of immunity for medical practitioners whenever dealing with a patient with a less than 50% chance of survival, even though the Utah Constitution guarantees that "[t]he right of action to recover damages for injuries resulting in death, shall never be abrogated." Utah Const. art. 16 § 5.
Loss of Chance
Loss of chance refers to the argument that "better results [for the patient]...
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