One of the most contentious legal issues facing courts in medical malpractice cases over the years has to do with “loss chance.”
Here’s the situation: To file a lawsuit and recover on a claim, a patient must show that the negligence on the part of the defendant actually caused harm. Negligence alone is not enough. In other words, a doctor’s failure to wash their hands before a procedure may be negligent, but if it cannot be shown that the dirty hands caused actual problems for the patient, then there can be no recovery.
But what happens when the “harm” is simply a lowered chance of a positive outcome down the road? This is especially common with mistakes like delayed diagnosis. If a patient has cancer, a doctor may misread test result and fail to notice the problem. The patient may eventually have the cancer identified later–perhaps even by the same doctor–but the delay in identifying it meant that treatment was delayed. If treatment had been started earlier, the patient may have had a better chance of beating it. The doctor’ delay did not “cause” the cancer–it was there already–but it did lower the patient’s chance of survival.
Courts are often faced with questions about when, if ever, a patient can recover in a lawsuit if the harm they suffer is a “lost chance” of a positive outcome.
Another State Allows Loss of Chance
Last week, the Minnesota Supreme Court explicitly held that a medical malpractice claim exists even if the only harm is lowered chance of survival. In a split decision (Dickhoff v. Green), the court reversed an old rule in the state. Previously, to recover in these cases a patient had to show that they would have likely survived but for the doctor’s negligence. In other words, the patient’s survival chance had to be over the 50% mark before the error.
Now, however, as a result of this ruling, the patient may pursue the claim even if the chance of survival were less than 50-50 to start.
Loss of Chance in Illinois
How does the rule work in Illinois? Fortunately, our state recognized the right of patients in certain case to seek recovery even if their risk of survival or recovery was less than 50%. The classic case which decided this from the Illinois Supreme Court was Holton v. Memorial Hospital.
The ruling in this case places Illinois in the majority, as 40 out of the 50 states allow these types of claims. It is not surprising that most states recognize lost chance claims. After all, it seems patently unfair that a patient would lose their day in court simply because their illness was more severe to begin with. The same rules should apply to all who are affected by medical errors.
If you or a loved one is ever affected by a delayed cancer diagnosis, misdiagnosis, or similar error which resulted in a loss of chance of survival, please get in touch with our attorneys to see how we can help. As one might expect, there are many different legal challenges connected to these matters, and so it is critical to have the assistance of experienced professionals.
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