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ATTORNEYS AT LAW
804 Stone Creek Parkway, Suite One
Louisville, Kentucky 40223
memo
To: Mr. Hectus
Cc: Rachel
Date: June 7, 2005
Re: Research – “Loss of Chance” Doctrine
Assignment: Research the loss of chance doctrine and in doing so cite specific
jurisdictions that have not adopted the doctrine and their reasoning.
After giving the arguments for not adopting the doctrine, the court
proceeded to go through the requirements for establishing medical
malpractice in Vermont, citing the relevant statute, namely, 12 V.S.A. §
1908. In short, the statute provides that a plaintiff shall have the burden of
proving: (1) the degree of knowledge/skill possessed/degree of care
exercised by a health care professional, (2) that the defendant lacked this
degree of knowledge/skill/or failed to exercise this degree of care, and (3)
that as a proximate result, the plaintiff suffered injuries that would not
otherwise have been incurred.
The court then began its rejection of the doctrine by stating:
“The loss of chance theory of recovery is thus fundamentally at odds
with the settled common law standard, codified in 12 V.S.A. § 1908(3),
for establishing a causal link between the plaintiff’s injury and the
defendant’s tortious conduct.” According to the statute, “an act or
omission of the defendant cannot be considered a cause of the plaintiff’s
injury if the injury would probably have occurred without it.” Thus, since
in this case the injury would have occurred anyway, the summary
judgment in favor of the doctor was correct.
The court in this case declined to depart from the statutory
requirements and adopt the loss of chance doctrine for a number of
reasons. Because the doctrine is a significant departure from the
causation aspect of tort law, the court stated that there were fundamental
questions
“about its effect on not only the cost, but the very practice
of medicine in Vermont; about its effect on causation
standards applicable to other processions and the
principles-if any- which might justify its application to
medicine but not other fields such as law, architecture or
accounting; and ultimately about the overall societal costs
which may result from awarding damages to an entirely
new class of plaintiffs who formerly had not claim under
the common law in this state.
2. South Carolina
a. A case discussing South Carolina’s reasoning re: the doctrine is Jones v.
Owings, 456 S.E.2d 371, (1995).
In this case, a licensed physician and specialist in orthopaedic
surgery treated decedent for a fractured left femur. After this treatment,
the decedent had a couple of chest x-rays, which apparently showed an
abnormality in the left upper lung. It was alleged that after these reports,
Dr. Owings took no action. In September 1989, decedent was diagnosed
with lung cancer and she ultimately died in 1990.
The personal representative of decedent’s estate brought a
wrongful death and survival action. The trial judge granted the
physician’s motion for summary judgment. On appeal, the personal
representative contended that the decedent’s injury was her “loss of
chance of survival” rather than her death, and that the trial judge erred by
applying the “most probably” standard to the decedent underlying disease
and death, rather than to the injury itself.
After a discussion on the three approaches adopted regarding the
“loss of chance” doctrine, the Supreme Court of South Carolina declined
to adopt the doctrine. The Court’s reasoning was that the doctrine “is
fundamentally at odds with the requisite degree of medical certitude
necessary to establish a causal link between the injury of a patient and
the tortuous conduct of a physician.” Further, the court noted that
[l]egal responsibility in this approach is in reality assigned based on the
mere possibility that a tortfeasor’s negligence was a cause of the ultimate
harm.” The Court concluded by stating: “This formula is contrary to
the most basic standards of proof which undergird the tort system.”
3. Tennessee
a. A case discussing Tennessee’s reasoning re: the doctrine is Kilpatrick v.
Bryant, 868 S.W.2d 594 (Tenn.1993).
Issue: Whether a cause of action for “loss of chance” is cognizable
in Tennessee?
Holding: No. “There can be no liability in a medical malpractice
case for negligent diagnosis or treatment that decreases a patient’s
chances of avoiding death or other adverse medical condition
where the death or adverse medical condition would probably have
occurred anyway.”
Analysis:
The Court gives a broad overview of causation and
proximate cause. The Court also gives a historical account of the
case in which the “loss of chance” doctrine originated—apparently
the discussion in that case regarding the doctrine was considered
dicta, and not binding on the courts, but several courts took that
language and ran.
In subsection (3) of the opinion, the Court cites the
jurisdictions which have rejected loss of chance, noting that many
of those courts “raise the objection that ‘recognition of mere
chance as a recoverable item of loss fundamentally contradicts the
essential notion of causation.’” (citations omitted). The Court
states:
4. Rhode Island
a. A case discussing Rhode Island’s reasoning re: the doctrine is
Contois v. Town of West Warwick, 865 A.2d 1019 (R.I. 2004).
This case has a brief historical background of the “loss of chance”
doctrine. However, the case itself is of little guidance as the court
determines that the facts of the case could not be reconciled w/ the
application of the loss of chance doctrine. Thus, the court basically held
the doctrine inapplicable, without rejecting it.
5. Alaska
a. A case discussing Alaska’s reasoning re: the doctrine is Crosby v.
U.S., 48 F.Supp.2d 924 (D. Alaska 1999).
Issue: Whether a claim for “loss of chance” may be
maintained in a medical malpractice action under Alaska law?
(Since there is no reported Alaska decision on point, the court must
predict how it thinks the Alaska Supreme Court would decide the
question.)
Holding: This court is persuaded that the Alaska Supreme
Court would not recognize an action for “loss of chance” in a
medical malpractice setting. At least 5 reasons support this
conclusion:
(Citations omitted)
6. Florida
a. A case discussing Florida’s reasoning re: the doctrine is Gooding
v. University Hospital Building, Inc., 445 So.2d 1015 (Fl. 1984).
Issues: (1) Whether plaintiff in a wrongful death action
must prove that more likely than not the death was caused by
defendant’s negligence; (2) Whether a theory of recovery for loss
of a chance to survive predicated upon alleged medical malpractice
is actionable in Florida?
Holdings: (1) Yes. (2) No. Loss of a chance to survive is
not actionable in Florida. “A plaintiff in a medical malpractice
action must show more than a decreased chance of survival
because of a defendant’s conduct. The plaintiff must show that the
injury more likely than not resulted from the defendant’s
negligence in order to establish a jury question on proximate cause.
In other words, the plaintiff must show that what was done or
failed to be done probably would have affected the outcome.”
(Citation omitted)
Analysis: The Supreme Court of Florida’s reasoning is
best summed up in the quote under “Tennessee” heading.