A forum for applicants and admitted students to ask law students and graduates about law school and the practice of law.
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- Joined: Mon Apr 20, 2009 4:03 am
According to Herskovits v. Group Health, P has to prove that the misdiagnosis caused the decreased probability of survival, based on a "more probable than not" standard. If so, then the reduced chance of survival is actionable. It doesn't specifically say that P has to die, although in this case P happened to die. The evidence that went to the jury was the fact that there was 14% reduction in the chance of survival, not the fact that P died (although I'm sure they considered it).
- Posts: 12218
- Joined: Wed Oct 20, 2010 5:20 pm
I just read this in the e&e - if you have it check out page 222 and page 235. It says that theoretically, it should be allowed because the loss of a chance of survival is actually about incurring the risk, not the disease. However, few courts are actually likely to apply loss of a chance of survival if the person is alive. It also brings up the point that if you apply loss of a chance while the person is still alive, if the disease does occur and P dies, a second suit will be barred by res judicata.