Loss of chance is a type of medical malpractice claim available when the negligence of a healthcare provider reduces or eliminates the odds of a positive outcome for the patient. Rather than suing for a physical harm, as with a typical malpractice claim, the patient sues for the value of the lost opportunity for recovery.
The elements required to prove loss of chance include:
1) Failure to Meet Standard of Care
A medical professional acts negligently when he or she fails to exercise the skills and knowledge normally possessed by members of the medical profession in good standing in similar communities. Negligence can mean:
2) Negligence Caused Loss of Chance
In order to succeed under a loss of chance claim, the patient must be able to provide evidence of the following:
- The patient had a chance of a better outcome (even if it was a small chance)
- The medical provider’s negligence diminished or eliminated that chance
These factors must be shown with a reasonable degree of medical certainty and will necessarily require the use of expert medical testimony.
In a loss of chance case, an injury or ailment is already present when the patient seeks treatment from the medical professional. The harm caused by the medical professional is not the injury but the reduced chance of a better result. So, to calculate a damage award for loss of chance, the jury must place a value on the chance of a better result. This value is calculated as a percentage of the value of the patient’s entire life (or limb, or wellness, etc.).
For example, if a patient’s chances of survival were reduced by 50% due to their doctor’s negligence, the damages award will be 50% of the value of that patient’s life.
If your healthcare provider has denied you or a loved one the most effective therapy for your injury or ailment, you should speak to a personal injury attorney immediately to learn more about the value of your case and what types of recoveries are available to you.