In a typical medical malpractice case, the patient’s loss is straightforward. A doctor’s negligence may cause someone to lose a body part, an organ’s function, or even their life. But in some cases, a doctor’s negligence may cause a more abstract loss. If a doctor deprives a sick person of their chance to beat an illness, a claimant may recover for the “loss of a chance” of survival.
Usually, a claimant has to show that the doctor’s negligence more likely than not caused an injury or death. Doctors often argue that a pre-existing condition caused the injury or death and not their course of treatment. If a patient came to a doctor with Stage IV cancer, the doctor may argue “the cancer would have killed the patient regardless of the decisions we made.” The die was already cast.
That said, suppose a doctor fails to timely diagnose a patient’s early-stage cancer, but a competent doctor would have caught the cancer in time and given the patient a chance to survive. In this case, the negligent doctor’s delayed diagnosis deprived the patient of treatment that would have saved his life. The law allows you to sue for this loss.
In Connecticut, where a pre-existing condition is involved, the family of the deceased patient can still recover damages if they can prove that the deceased patient probably would have survived had he been treated properly. On the other hand, if the deceased patient probably would not have survived with proper treatment, then the pre-existing condition was the cause of his death and there is no recovery.
A claimant must prove that without the doctor’s negligent treatment, the patient had a 51% chance of survival. A mere possibility of survival, but not a probability of survival, is insufficient. Loss of a chance is not considered a separate medical malpractice claim or a separate element of damages. It is simply another way to prove causation – that the doctor’s negligence caused a harm or loss. Keep in mind that a claimant still must prove that the doctor’s actions fell below the standard of care that similar healthcare providers consider appropriate and acceptable.
Loss of a chance cases are complex and require precise expert testimony. If you suspect that a doctor’s negligence caused your loved one to lose out on a chance of survival, speak to an experienced lawyer to find out if you have a case for loss of a chance of survival.
Berkowitz Hanna
