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Loss of Chance, Can We Keep it Simple?

Jennifer D. Koh

June 6, 2016

                  In the world of medical malpractice litigation in Washington State courts, the possibility of a plaintiff obtaining some recovery based on a “loss of chance” has been around since at least 1983. We could spend a lot of time debating what the law should be and wondering whether to thank or blame the state of Michigan or the guy who wrote those articles in the Yale Law Journal.  But perhaps the best course for confronting these kinds of claims in Washington courts today is to nail down some basic practical realities stated in the handful of published Washington cases on loss of chance.

                  First, loss of chance is a kind of injury not a method of proving who caused an injury.  In regular medical malpractice claims, the plaintiff must prove, on a more probable than not basis, that the doctor’s negligence caused the unexpected bad or sad outcome of the medical procedure or treatment.  In a loss of chance claim, the plaintiff has to prove, still on a more probable than not basis, that the doctor’s negligence caused the plaintiff to lose a chance.  Despite what some people seem to believe, Washington courts have rejected the notion that a plaintiff can recover by merely proving that the doctor’s negligence contributed to the bad outcome, or was a “substantial factor” in the sad result.  That’s no longer a thing in Washington law, if you know what I mean. (But stay tuned.  Some people are still making that argument to a big Washington court).

                  Next, the plaintiff must produce a qualified medical expert to support a loss of chance claim and that expert must actually state a number, specifically a percentage, to describe the loss of chance.  Why? Because that number, stated in a percentage, is the way Washington courts currently understand a loss of chance injury.  The compensable injuries in traditional medical malpractice cases vary wildly.  The compensable injury in a loss of chance claim is always the loss of a chance.  The difference is the size of the chance that was lost.  That has to be measured by a number provided by a qualified expert.  (As a bonus, that number is also conveniently used to determine the proper recovery for a successful loss of chance claim.  Maybe that leads to confusion, but that is just the way it goes, so to speak).

                  Finally, the actual number identified by the qualified medical expert determines whether a plaintiff can ask the jury to award compensation for the loss of chance.  If the number is 51% or greater, the plaintiff may not recover for a loss of chance, but may still ask the jury to award damages for the ultimate bad or sad result of the medical procedure or treatment.  If the number is 50% or less, the plaintiff may present a loss of chance claim to the jury.  Also, if the number is a range including both categories, let’s say, for example, a range of 50% to 70%, the plaintiff may present both claims to the jury.  Simple, right?

                  Now that we have reviewed these basic principles, we can easily agree on the best way to instruct a jury on how to evaluate a loss of chance claim, particularly when the plaintiff also presents a traditional claim for an award of damages based on the ultimate outcome of the medical treatment.  Ok, maybe it’s not so simple. 

                  If you’d like a more scholarly treatment of this topic, a list of relevant Washington cases, or a lively debate on what the law on loss of chance should be, feel free to contact me at jennifer@favros.com.

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