Loss of Chance Doctrine Forum

[sparty99]

If I was mis-diagnosed with cancer and had a 60% chance of living and now it is 20%, but I'm still alive, can I recover damages under the loss of chance doctrine?

[cinephile]

I don't think so, because nothing the doctor did actually limited your chance of survival, it was just a misdiagnosis (unless diagnosing late limited chance of survival).

[thereelshaq]

you need to die in order to invoke the loss-of-chance doctrine; courts don’t deal with chances that decrease but are not eliminated.

[helloscriptkitti]

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).

[ilovesf]

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.