Lost Chance Doctrine Explained

When someone is suffering from a serious illness, every day they spend with their loved ones is a blessing. Prompt diagnosis and treatment can make the difference between recovery and struggling to survive. In some cases involving serious illness, medical malpractice is obvious; a doctor’s action or inaction directly leads to an injury or illness, and the patient can fight to recover compensation. But what happens when a physician’s mistake doesn’t lead directly to an injury, but instead reduces the patient’s chances of recovering or surviving?

This is what the lost chance doctrine addresses. It’s a legal concept that helps patients and families seek justice in more complex medical malpractice situations. If you believe that your doctor’s action or inaction damaged your chances of making a full recovery, let’s talk. Call Crandall & Pera Law to discuss your next steps now.

What is the lost chance doctrine?

Medical malpractice is already an extremely complex area of law, even when you consider its most straightforward cases. In most cases, the patient has to prove that the doctor’s negligence likely caused their injury. However, if a patient is already seriously ill when they seek medical care, it isn’t quite as cut-and-dry.

Consider a patient who has cancer. Based on how far along their cancer is when they seek medical care and other medical factors, they would have had a 60% chance of surviving if they were diagnosed and treated promptly. However, in this case, the doctor doesn’t diagnose it promptly. They ignore the patient’s symptoms and only order diagnostic screening after the patient continues to schedule follow-up appointments and eventually demands that something be done.

Because there was a significant delay in the patient’s diagnosis, their chance of survival then drops to 30%. The doctor’s actions didn’t cause the cancer, but they did actively decrease their chance of survival.

This is what the lost chance doctrine addresses, giving patients a chance at compensation if their doctor’s actions damage their chances of survival.

How courts approach lost chance claims

This is quite different from other types of medical malpractice, so cases involving the lost chance doctrine have popped up in state Supreme Courts over and over again. Some states only allow you to recover compensation if you initially had a greater-than-50% chance of survival, while others allow you to pursue compensation even if your initial prognosis gave you a survival rate of less than 50%. The reasoning for the first scenario is that if the odds were already against someone, further decreasing those odds isn’t worthy of compensation—obviously not a welcome thing for someone fighting a disease to hear.

Ohio falls into the second category, thanks to Roberts v. Ohio Permanente Medical Group, Inc. in 1996. Prior to this case, you could not sue under the lost chance doctrine if your odds of survival were initially lower than 50%. After this case, victims could sue care providers for the lost opportunity to recover, regardless of how low their odds initially were.

Now, most states approach lost chance cases by evaluating how a patient’s chances of survival were affected. In the example above, the drop from 60% to 30% reflects a 30% decrease in survival odds, and the court would base compensation on that.

Why are these cases so complex?

It’s important to recognize the limitations of these cases as you decide whether or not to seek compensation. Ohio shifted from a rule that denied many malpractice victims justice, but it didn’t necessarily provide clarity as to how patients can seek compensation after this type of loss. Following the Ohio Supreme Court ruling, courts throughout the state have made conflicting decisions, so you really don’t know how the court will view your case until you pursue it.

Additionally, there is a fair amount of speculation involved in these cases. When we look back at a health journey, we can only talk about what may or may not have changed the outcome. We can’t really definitively say “if x had/hadn’t happened, y would not have happened.” Because of that, determining how much of a recovery chance you lost requires extensive insight from physicians with practice experience in the same specialty area or a substantially similar specialty area as your doctor. Based on their insight, your attorney can approximate how much your chance of recovery was affected by your doctor’s action or inaction.

Another issue that complicates these cases is the difficulty of explaining them to a jury. Some types of malpractice are much easier to explain to the general population. “If the doctor had counted surgical sponges before closing the patient up, they would not have left a sponge in the patient.” “If the doctor had followed the standard of care based on the patient’s ultrasounds, they would have ordered a C-section, and the baby would not have developed cerebral palsy due to lack of oxygen in labor.” Cases affected by the lost chance doctrine are harder to explain to laypeople. You need an Ohio medical malpractice lawyer who can break down the concept, translate numbers into understandable terms, and convince the jury of the doctor’s negligence.

Finally, you should expect the other party to fight aggressively against these types of cases. It’s common for hospitals and insurers to insist that the chance lost was too small to be important, or they may claim that a negative outcome would have happened no matter what the doctor did.

Did your doctor’s actions hurt your chance of recovery? We’re here to help

If you’ve been the victim of medical malpractice, having the right attorney matters. Our team of lawyers is here to help you seek compensation and closure after a physician has wronged you. Call us or contact us online to explore your options now.