June 21, 2013

More on the “Lost Chance” Doctrine’s Battle of Interests

by Levin & Perconti

Last week we touched on a somewhat nuanced legal issue that has been discussed repeatedly across the blogosphere over the last few days. The issue is known as the Lost chance” or “loss of chance” doctrine. It most often applies to cases of missed diagnosis or delayed diagnosis. Considering that diagnostic errors are the most common mistakes leading to medical malpractice judgments and settlements, it it worthwhile to re-emphasize more of the general principles underlying the debate around this issues.

Lost Chance of Survival in Illinois
Illinois is among a number of states that have adopted the “lost chance” doctrine. Simply put, lost chance is the harm resulting to a patient when negligent medical treatment has allegedly decreased the patient’s chance of survival or recovery. In 1997 the Illinois Supreme Court heard Holton v. Memorial Hospital and ultimately recognized the right of patients in certain cases to seek recovery, even if the patient’s risk of survival or recovery was less than 50%. With this ruling, Illinois joined a majority of states in recognizing the lost chance doctrine. Undoubtedly, patients in Illinois prospered with this ruling, both from a fairness and financial standpoint. After all, a delayed diagnosis can be lethal in some circumstances.

The question then becomes, what effect does this ruling have on the law?

Taking a step back, basic principles of tort law hold that a defendant should not be held liable unless a plaintiff demonstrates that the defendant’s actions more likely than not caused the plaintiff’s injury. The phrase “more likely than not” implies greater than 50%. Yet the ruling in Holton allows for a cause of action where the patient’s risk of survival or recovery was less than 50%.

The Holton holding raises concerns in certain circumstances, taking into account the long-held principle of “proximate cause.” For example, take a plaintiff with a delayed lung cancer diagnosis, who provides expert testimony indicating at the time of the defendant’s delayed diagnosis, the plaintiff had a 30% chance of recovery. In this circumstance, it is numerically impossible to prove that the doctor’s actions proximately caused the patient’s injury, because even if the patient’s cancer had been timely diagnosed, his odds of recovery never surpassed the requisite 50% threshold.

So where does this leave us?

There is no doubt that medical developments alone justify the existence of the lost chance doctrine. As science and medicine evolve, medical professionals are able to identify disease and illness at earlier stages than ever before imaginable. Thus the harm in delayed or misdiagnosis has never been greater. With that said, the effects on the law’s long-standing principles must be taken into account as courts strive to strike a balance between these two profound interests.

Like many other tricky legal issues, even though it may seem like the loss of chance doctrine is now “settled” in Illinois, future legal battles are still likely. New medical advances, unique legal argument, one-of-a-kind cases, and other concerns will come up at some point in the future. Medical malpractice lawyers will need to remain abreast of any tweaks to the law which may impact arguments made on their clients behalf related to these principles.

See Other Blog Posts:

High Court Rules on “Loss of Chance” Medical Malpractice Claims

Helping Your Doctor Avoid Malpractice