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Court adopts the 'loss of chance' rule in medical malpractice

A doctor doesn't have to physically harm the patient in order to be legally liable. One growing principle in the medical malpractice field is called the 'loss of chance' doctrine. In Michigan and many other states, the trend is to recognize the doctrine as applicable to medical malpractice law.


In essence, if a physician's negligence reduces the patient's chances for surviving, the doctor can be liable for damages for medical malpractice. A recent court decision in another state illustrates the application of the principle in medical malpractice law. The Court held that a girl with muscle cancer could sue a pediatrician for doctor negligence resulting from a failure to diagnose her cancer sooner.

In that Minnesota case, the baby's parents told the pediatrician several times about a lump on her buttock but the doctor failed to record, treat or diagnose the lump. Eventually, another doctor diagnosed the rare muscle cancer. In the lawsuit, the parents alleged that doctor negligence caused their daughter's changes of survival to be reduced significantly.


The girl is now seven, and her doctors have testified that the cancer is fatal. However, in 2010 a trial judge dismissed the lawsuit on the belief that the state doesn't recognize the loss of chance doctrine. The state's highest court rejected that reasoning and held that the doctrine is a basic principle of medical malpractice law and is the law in Minnesota.


The decision allows a patient with less than a 50 percent chance of survival to sue the physician for negligence in decreasing the patient's chances for survival. The child had reached only a 40 percent chance of survival when she was finally diagnosed. If she had been diagnosed sooner, her chances would have been higher than 60 percent, according to a testifying medical expert.


In Michigan and elsewhere, the doctrine is a fundamental principle of medical malpractice law. Tort reform crusaders, however, attack the doctrine for its alleged potential to explode medical care costs. Lawyers' groups point to statistics that disprove that theory. They assert that losing a substantial percentage of your chances to survive due to doctor negligence is a measurable harm that should be compensated.


Source: Thomson Reuters News & Insight, "Minnesota court embraces 'loss of chance' in medical malpractice," Elizabeth Dilts, June 11, 2013

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