Lost Chance Doctrine in Medical Malpractice Cases: Evolving Standards of Proof and Damages Formulas

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Tuesday, November 23, 2021

Recorded event now available

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Course Materials

This CLE course will review the "loss of chance" doctrine endorsed in one form or another by the substantial and growing majority of states, the different approaches taken by courts nationwide, how it is evolving, and evidentiary considerations.

Description

Unique to medical malpractice, "loss of chance" or "lost chance" theories arise when a doctor's negligence more likely than not deprived the patient of a chance or possibility of a better outcome. A majority of the states that have considered the question have endorsed the loss of chance doctrine, in one form or another.

But the law on loss of chance is in flux as more and more courts are abandoning the traditional all-or-nothing rule. The law is difficult to navigate due to the different approaches taken by courts around the country. Counsel must recognize when the doctrine is one of causation and when it is one of damages. Calculation of damages in such cases is complicated as some courts now take a proportional damages approach. Further, there remains uncertainty as to whether loss of chance represents a distinct claim that must be specifically pled, or whether it is simply an alternative item of damages in the plaintiff’s traditional negligence claim – and the answer dictates whether certain defenses are available or not.

Jury instructions can be particularly misleading or confusing for a jury considering a "lost chance" case. Counsel must challenge those and offer substitutes. Furthermore, counsel need to know the exact burden of proof and how damages are calculated.

Listen as the experienced panel of medical malpractice counsel from both the plaintiff and defense sides offers ways to maximize or minimize the loss of chance doctrine in medical malpractice cases.

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Outline

  1. Origins of loss of chance
  2. Loss of chance as a proximate causation issue
  3. Loss of chance as a damages issue
  4. The necessity of experts
  5. Calculating damages

Benefits

The panel will review critical issues, such as:

  • What if the patient has a low chance of survival?
  • Is the loss of chance a proximate cause or damages issue?
  • How are damages calculated?
  • Do pattern jury instructions adequately include loss of chance charges?
  • When must a plaintiff assert a loss of chance claim? How can the loss of chance doctrine be limited (or perhaps expanded)?

Faculty

Artusa, Philip
Philip Artusa

Attorney
Kaufman Borgeest & Ryan

Mr. Artusa focuses his practice on the defense of professional liability claims against health care professionals in...  |  Read More

Mims, Michael
Michael Mims

Member
Bradley Murchison & Kelly Shea

Mr. Mims enjoys a diverse practice that includes commercial and environmental litigation, general corporate...  |  Read More

Goodwin, Ryan
Ryan Goodwin

Attorney
Patrick Jackson

Mr. Goodwin practices in the Shreveport, LA area. He began his career as a medical malpractice defense lawyer but...  |  Read More

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