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Can a plaintiff who is alive use loss of chance doctrine if doctor's negligence decreased chance of survival from 45% to 20%?

Almost positive yes. Look at Matsuyama v. Birnbaum.

jumpin munkey wrote:Almost positive yes. Look at Matsuyama v. Birnbaum.

Well, in that case Matsuyama died so likely not the best example. I don't think it has ever been used for someone who survived, but if you see it in a final and the person survived your prof definitely wants you to consider the possibility and maybe say why or why not liability should be found.

If they survived, what are the damages? -_-

Teoeo wrote:If they survived, what are the damages? -_-

P now has a 20% chance at survival instead of a 45% chance

Most states require death to collect. A note from my torts book:

In footnote 33, the court states that it does not decide whether the ultimate harm, i.e., death in Matsuyama, must be suffered for a lost chance claim to be asserted...Most courts do not permit recovery for lost chance in this situation See, e.g., Alberts v. Schult. For a case permitting recovery for a lost chance before the outcome to be avoided had occurred, see Alexander v. Scheid

It's used when you can't prove but-for causation (but-for medmal, patient had a 40% of survival, but it''s still not more likely than not [excuse the double negative] that but for D's negligence, patient would not be injured.) Falcon is the case we used for this.

Say damages are 100k, 3 views:

1 - Patient's estate gets nothing because he cannot prove but-for causation.

2 - Patient's estate can recover for the loss of a 40% chance of recovery. Even States that follow this approach allow it only for death (Michigan, where Falcon was, later passed a statute).

3 - Patient's estate can recover 100K, a few states do this (I think NY? But I'm not positive, I think there was a case vs Kellenberg but I can't remember the P's name).

This doesn't really apply outside of a medical setting; we're not going to let someone in a car crash recover 30% of 100K because but-for defendant's conduct there was a 30% chance he wouldn't have been in an accident.

Edited:

I think I was wrong, been a long time since I took torts ^_^

Teoeo wrote:

legsfrog8 wrote:

Teoeo wrote:If they survived, what are the damages? -_-

P now has a 20% chance at survival instead of a 45% chance

I think you are misapplying the doctrine. Loss of chance is a unique way of showing causation when the breach of the duty of care didn't necessarily fully cause an injury, but reduced the chance of a successful outcome. Whether or not you can prove causation, however, doesn't relieve you of having to show actual damages. If no one is injured, causation is irrelevant.

This is in line with normal negligence law, you can't prove negligence just on duty/breach/causation if you can't prove any damages...

The "lost chance" meaning the 25% worth of chance is the damage. Causation still needs to be proved through malpractice and supported by statistical evidence. The doctor may not be the but for cause of death, but s/he is the but for cause of the loss of chance.

Single-Malt-Liquor wrote:

Teoeo wrote:

legsfrog8 wrote:

Teoeo wrote:If they survived, what are the damages? -_-

P now has a 20% chance at survival instead of a 45% chance

I think you are misapplying the doctrine. Loss of chance is a unique way of showing causation when the breach of the duty of care didn't necessarily fully cause an injury, but reduced the chance of a successful outcome. Whether or not you can prove causation, however, doesn't relieve you of having to show actual damages. If no one is injured, causation is irrelevant.

This is in line with normal negligence law, you can't prove negligence just on duty/breach/causation if you can't prove any damages...

The "lost chance" meaning the 25% worth of chance is the damage. Causation still needs to be proved through malpractice and supported by statistical evidence. The doctor may not be the but for cause of death, but s/he is the but for cause of the loss of chance.

Ya, I think I may have been wrong - it's been a long time since I took torts and I don't do anything related to Medical Malpractice :3

I think it could apply here.

Generally, the loss of chance doctrine is used when a plaintiff dies. For example, a hospital looses blood work that would have provided a diagnosis three hours earlier. That blood work would likely have provided a diagnosis of a condition that is remedied by a transfusion 60% of the time. The estate [or family] is accordingly entitled to compensatory damages.

I believe the doctrine could also be used in a similar scenario where a plaintiff survives. To reference the prior example, the hospital looses blood work. The blood work is found three hours later. The plaintiff survives, but looses a permanent 40% function of the lungs. If the blood work had not been lost, a proper diagnosis would have led to treatment that is successful in 60% of patients.

I think I've seen some case law on this, but am too lazy to check right now. Back to my beer. . . .