“Loss of a Chance” as a Legal Theory

People are often perplexed at the verdict amounts in civil tort cases. Even sometimes to an experienced attorney, damages calculations, while rooted in clear guidelines, can have a counter-intuitive result. One such theory of damages that we want to try to explain in everyday terms is “loss of a chance,” and why sometimes damages may result to a person from what seems to be nothing at all. We will explain.

Oftentimes, with a cancer diagnosis, people think, as many scientific studies would indicate, that the cause of the cancer is numerous things, such as lifestyle, genetics, and environment. Certainly, these all may be causes. The important thing to remember, though, is that they would be contributing causes, and they may not the sole contributing causes. When a court is assessing causation, in the legal sense of that term, it is not concerned necessarily with the most likely cause, or on any single cause; rather, it is concerned with whether or not the defendant in that courtroom is at least one of the many possible causes.

In the context of cancer diagnosis, the “loss of a chance” doctrine comes into play when a doctor or healthcare provider has a chance to recognize a sign of cancer, or an early stage of cancer, and they fail to do so. At that point, maybe the ultimate damage has not been done, but the idea is that it actually has happened, legally speaking. Rather than affirmatively hurting the patient, damage has been done by the omission. In other words, if you could rewind time, and have the doctor catch whatever sign or symptom was there, then treatment could have begun or been altered, and the patient’s outlook for the future would be greatly improved.

Many courts initially disfavored “loss of a chance” as a theory for recovery, because the thinking was that until damage had actually been done, that no one should be held liable. In other words, the injury is hypothetical in nature. Some states still do not allow a plaintiff to proceed under a “loss of a chance” theory, while many others have moved toward allowing such theories.

The moral of the story seems to be that in many instances you would not need to be at an advanced stage of cancer before you are allowed to walk into court and seek vindication of your rights. This is especially true if you feel that a hospital or healthcare provider should have noticed a warning sign when they did not. Sometimes a quiet omission can be the genesis of very bad results. As always, you should contact an attorney if you think you may have been affected by an omission by a healthcare provider in this way.