Loss Of Chance of Survival Recoveries

The Massachusetts Supreme Judicial Court affirmed a $328,135 jury award to a widow and her son based on her husband’s lost chance of recovery resulting from a doctor’s negligence in not treating his stomach cancer. This ruling based upon the theory of “loss of chance” damages is being applauded by plaintiffs’lawyers.
The court held that the family could recover even though the victim had less than a 50-percent chance of survival when he first sought treatment. The “loss of chance” doctrine eases the burden for plaintiffs. Under traditional malpractice rules, doctors may only be held liable if their negligence was a substantial factor in the injury or death. Under the “loss of chance” doctrine, a doctor can be liable if his failure to diagnose reduced the patient’s chance of survival.
The jury in the case found that the deceased was suffering from stage 2 adenocarcinoma at the time of his first visit to his doctor, who examined him and prescribed over-the-counter medication. A gastroenterologist who testified as an expert for the defense told the jury that stage 2 stomach cancer has a survival rate of 25 to 40 percent.
In its decision, the Massachusetts court noted that a majority of courts which have consider “loss of chance” damages have accepted the doctrine. These states include Arizona, Connecticut, Kansas, Illinois, Indiana, Iowa, Louisiana, Michigan, Missouri, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, Wisconsin and Wyoming. The District of Columbia has also approved “loss of chance” damages.
In Michigan and South Dakota, the legislatures have since passed statutes to preclude “loss of chance” actions where the opportunity to survive is less than 50 percent.
The highest courts in Florida, Kentucky, Idaho, Maryland, Minnesota, Mississippi, New Hampshire, Tennessee, Texas, South Carolina and Vermont, have rejected the doctrine.
The Georgia Court of Appeals appears to he adopted the “loss of chance” doctrine in at least two cases. In Richmond County Hospital Authority Operating University Hospital v. Dickerson, 182 Ga. App. 601, 356 S.E.2d 548(1987), the court held that expert medical testimony that a patient’s chances of survival, even with surgery, were less than 50%, did not preclude a finding of causation. In Dowling v.Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993), the Court of Appeals noted that while a wrongful death claim could not include a recovery for “loss of chance,” the claim brought by an estate could bring this theory of recovery.