Academic journal article The Review of Litigation

The Application of the Loss of Chance Doctrine in Class Actions

Academic journal article The Review of Litigation

The Application of the Loss of Chance Doctrine in Class Actions

Article excerpt

I. Introduction

The loss of chance doctrine enables a plaintiff to obtain damages from a defendant for a heightened risk of death or injury, even if the plaintiff cannot prove by a preponderance of the evidence that the ultimate injury was caused by the defendant's negligence.1 For example, suppose a person who is facing a terminal illness undergoes a medical procedure that his or her doctor performs negligently. As a result of the doctor's negligence, the person's chance of survival is lowered from thirty percent to twenty percent, and the person subsequently dies. Even if the patient's estate cannot prove by a preponderance of the evidence that the doctor's negligence caused the death of the patient, the loss of chance of survival is still of a compensable quantity, and the estate can recover for the value of this loss. Therefore, the loss of chance doctrine changes what was part of the causation analysis into a measure of damages.2

Over the last fifteen years, many states and commentators have wrestled with the question of whether to adopt the loss of chance doctrine as the Supreme Court of Washington first did in the landmark case of Herskovits v. Group Health Cooperative of Puget Sound.3 A majority of states have adopted the loss of chance doctrine,4 while a few other states have rejected it.5 Several states that have adopted the loss of chance doctrine have limited its application to specific types of torts.6

The vast majority of the cases using a loss of chance measure of damages have involved medical malpractice, and almost all of the cases have involved an individual loss of chance. In this Article, I argue that the opposite should be true. The application of the loss of chance doctrine in class actions is much more in conformity with what most people consider to be an "injury."8 The theoretical framework for the loss of chance doctrine in class actions is much cleaner than in individual cases.9 Also, as a result of avoiding these issues, courts in individual cases are able to gloss over some serious inaccuracies in their opinions with respect to damage calculations.10

Parts II and III of this Article first argue that the loss of chance doctrine is more appropriate in class action cases than in individual damage cases. The Article then proceeds to examine some hypothetical cases to show how the application of the loss of chance doctrine would proceed as well as where potential problems might lie. From these hypothetical cases some conclusions are drawn about the best framework for the loss of chance doctrine as a whole.

II. Theoretical Inaccuracies in the Application of the Loss of Chance Doctrine to Individual Cases

Regardless of whether it is applied in the class action or individual context, the loss of chance doctrine is a major departure from the state of the law before its introduction, no matter what justification a court offers. Application of the loss of chance doctrine requires a complete reconceptualization of both the causation analysis as well as the measure of damages. As a result, many of the courts incorporating the loss of chance doctrine in their states' case law have ignored difficult theoretical issues. Because these courts have ignored the core theoretical issues entailed by the loss of chance doctrine, it is likely that they have made mistakes in estimating the loss of chance award.

The landmark case of Herskovits v. Group Health Cooperative of Puget Sound is a good example of this pattern.11 In this case, through a doctor's negligence, a patient's chance of survival dropped from 39% to 25%, and he subsequently died.12 The Supreme Court of Washington held that this loss of a 14% chance of survival justified an actionable claim for which damages could be sought.13 However, the court did not explicitly finish the calculation to demonstrate how to measure those damages. For example, the court could have said that a jury would calculate the value of the plaintiffs life and then take 14% of that amount to determine the damages. …

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