Treatment Delay? ED Patient May Sue For "Loss of Chance"

Flood gates for suits opened

Lawsuits for "loss of chance" involving ED care are increasing, reports Jennifer L'Hommedieu Stankus, MD, JD, a medical-legal consultant, former medical malpractice defense attorney, and a senior emergency medicine resident at the University of New Mexico Health Sciences Center in Albuquerque. "This is a tricky legal concept that is gaining in popularity, particularly for things such as failure to offer [tissue plasminogen activator] to patients with acute ischemic stroke," she says.

"Loss of chance" is also applicable to any sort of delayed diagnosis if there is a possibility that a sooner diagnosis would have limited the patient's injury in any way, says Stankus. "Of note, this legal doctrine is available in most, but not all, states," she says.

The traditional tort law of negligence requires that plaintiffs prove that it was more probable than not that the alleged negligence caused the injury in question, says Stankus. Under that rule, she explains, a plaintiff must prove that there is a greater than 50% chance that an injury would not have occurred but for the action(s) or omission(s) of the defendant(s).

"The legal doctrine of 'loss of chance' dramatically changed centuries of tort law," says Stankus. "It has had a huge impact on medical malpractice litigation."

Whereas before, a medical expert was required to testify that "within a reasonable degree of medical certainty" there was a greater than 50% chance that the injury would not have occurred but for negligence, Stankus explains, many jurisdictions now recognize an injury for negligence based upon a possible loss of a chance for a more favorable outcome.

"In other words, it is this loss of a chance that is being compensated rather than the outcome itself, which cannot be known," she says. Under this doctrine, Stankus explains, a medical expert must merely testify that there was a chance, however slim, for a better outcome.

"It would be difficult to think of a scenario in which that would not be true. So the flood gates for medical malpractice suits have been opened," says Stankus. "This theory is highly speculative, and the speculation ultimately rests with the jury, not with the medical expert."

To protect yourself, Stankus says to be very careful with discharge instructions and make the patient feel comfortable returning to the ED if he or she has any concerns. "Timing and delays are huge in this legal theory," she says. "Allow for the possibility that you do not know what is going on with the patient. "

Stankus gives the example of an EP diagnosing a sinus infection in a patient presenting with headache. "Never make up a diagnosis. If you don't know, you don't know," she says.


For more information, contact:

• Jennifer L'Hommedieu Stankus, MD, JD, Department of Emergency Medicine, University of New Mexico, Albuquerque. E-mail: