distinguishing 2 approaches to "loss of opportunity"

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dudnaito
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distinguishing 2 approaches to "loss of opportunity"

Postby dudnaito » Fri Dec 03, 2010 3:54 pm

in medical malpractice cases.



1: A plaintiff must prove that as a result of the defendant's negligence, the plaintiff was deprived of at least a 51% chance of a more favorable outcome than she actually received.

2: The second approach, a variation of the former approach, relaxes the standard of proof of causation. The causation requirement is relaxed by permitting P's to submit their cases to the jury upon demonstrating that a D's negligence more likely than not "increased the harm" to the P or "destroyed a substantial possibility' of achieving a more favorable outcome.

I used to know this, even went to office hours for this, but now i just forgot... so what's the difference between these two?

Thanks in advance.

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gwuorbust
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Re: distinguishing 2 approaches to "loss of opportunity"

Postby gwuorbust » Fri Dec 03, 2010 4:28 pm

the second example is clarified here viewtopic.php?f=3&t=139485

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kswiss
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Re: distinguishing 2 approaches to "loss of opportunity"

Postby kswiss » Fri Dec 03, 2010 7:52 pm

First approach is straight up proof of causation. If you had a 30% chance of recovery and a negligent procedure reduced it to 10%, there is no possible way that the doctor's negligence caused you to not recover (since you were probably not going to recover anyway.) But if you have a 55% chance of recovery and the doctor lowers it to 45%, then: before the operation --> probably recover. After operation --> probably won't recover. So you can establish that but for the doctor's negligence, you probably would have recovered.

The second situation: even if you have a less than 50% chance to begin with, the jury can decide how much less of a chance you had as a result of the procedure and compensate you based on the difference in chance.

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JazzOne
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Re: distinguishing 2 approaches to "loss of opportunity"

Postby JazzOne » Fri Dec 03, 2010 8:04 pm

kswiss wrote:First approach is straight up proof of causation. If you had a 30% chance of recovery and a negligent procedure reduced it to 10%, there is no possible way that the doctor's negligence caused you to not recover (since you were probably not going to recover anyway.) But if you have a 55% chance of recovery and the doctor lowers it to 45%, then: before the operation --> probably recover. After operation --> probably won't recover. So you can establish that but for the doctor's negligence, you probably would have recovered.

The second situation: even if you have a less than 50% chance to begin with, the jury can decide how much less of a chance you had as a result of the procedure and compensate you based on the difference in chance.

Correct. The second approach was basically developed because of the way expert doctors characterize medical evidence. Doctors don't speak in terms of but for causation. Rather, doctors deal with percentages based on statistical studies. So the second approach allows a victim to collect when the doctor's negligence decreased that patient's chance of recovery, even when the chance of recovery was not likely to begin with. I think the typical example would be a cancer patient with less than 50% chance of survival. Under the old rule, a doctor could treat the patient as negligently as possible without repercussion because the but for standard didn't contemplate this kind of situation.

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kswiss
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Re: distinguishing 2 approaches to "loss of opportunity"

Postby kswiss » Fri Dec 03, 2010 8:14 pm

Also keep in mind:

Old rule favors plaintiffs when their initial chance was over 50%, because they could be compensated for all of their damages even if the doctor only reduced it by an amount that dropped it below 50%. It favored defendants when initial chance was less than 50%, because like the guy above said, there is no way to get to but for causation when you were probably not going to recover anyway.

New rule is opposite. Favors defendants if your initial loss of chance is over 50%, because they only have to pay for the difference, not all damages. It favors plaintiffs if their initial chance was below 50% because it allows them some compensation.

And its not necessarily new rule/old rule. There are many jurisdictions that still use the old rule, and there are hybrid versions.

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JazzOne
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Re: distinguishing 2 approaches to "loss of opportunity"

Postby JazzOne » Fri Dec 03, 2010 10:19 pm

kswiss wrote:And its not necessarily new rule/old rule. There are many jurisdictions that still use the old rule, and there are hybrid versions.

I wasn't suggesting that all jurisdictions have moved to the new rule. I was just showing how the "new rule" developed in response to the fact that the "old rule" was not suited to deal with the language used by medical experts. The "new rule" is new in the sense that it emerged later than the but for standard.

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dudnaito
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Re: distinguishing 2 approaches to "loss of opportunity"

Postby dudnaito » Sat Dec 04, 2010 3:19 am

got it thanks. Just read it again after a nap, and it seemed so much clearer.




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