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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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, November 30, 2022

Recorded event now available

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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.


Unique to medical malpractice, "loss of chance" or "lost chance" theories arise when a doctor's negligence more likely than not deprives the patient of a chance or possibility of a better outcome. Most 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 courts abandon 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. Calculating 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 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.



  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 for experts
  5. Calculating damages


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 a 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 expanded)?


Eiva, Travis
Travis Eiva

Trial Attorney
Eiva Law

Mr. Eiva has obtained multi-million-dollar jury verdicts. He regularly settles six and seven-figure cases. Mr. Eiva...  |  Read More

Ramsey, William
William A. Ramsey

Barrett McNagny

Mr. Ramsey represents clients on appeals, defends medical malpractice and general liability claims, and litigates...  |  Read More

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