Defending loss of chance can be a true challenge

Arguments over loss of chance often come down to a battle of the experts regarding how much difference the alleged malpractice made in the outcome, says Jacqueline M. Carolan, JD, partner with the law firm of Fox Rothschild in Philadelphia.

Did the patient lose 5% of the possible life span with this diagnosis? Was it 35%, or 55%?

Defendants can be put in the tough position of saying the patient was going to die anyway, so that percentage loss doesn’t really matter. That statement can sound callous, whereas the plaintiff will counter with the emotional argument by asking the jurors if they wouldn’t treasure that extra 5% to spend time with their child or spouse.“It can be a tough argument for the defense, because for many of those jurors who are so afraid of cancer, a 5% difference in the outcome means a lot. Courts used to say that if the loss wasn’t at least 50%, you didn’t have a claim, but now some courts are letting that 5% claim in when previously they wouldn’t allow it,” Carolan says. “It’s difficult in this age of sound bites to get 12 people to really understand the medicine and the statistics, and they can see this as an appealing way to give something to the plaintiff.”

A plaintiff’s attorney will use loss of chance to argue for appropriate damages, not necessarily the evidence of malpractice, says Karl J. Protil Jr., JD, equity shareholder with the law firm of Shulman Rogers Gandal Pordy Ecker in Potomac, MD. The attorney will tell the jury that even though the patient would have died anyway, no matter what the doctor did or did not do, the patient was robbed of an opportunity.

“You still have to prove the loss of chance, that if the doctor had done something differently then the patient’s outcome would be substantially different. It has to be a progressive disease where if you catch it at point A you have a certain chance, but you caught it at point B and you have a diminished chance of survival,” Protil explains. “Cancer fits that model perfectly.”

The defense against loss of chance is to claim that even if the disease had been caught at the earliest opportunity, it still would have progressed and that there is no way to know that the doctor’s action or error caused any harm or hastened death. The plaintiff then must counter with evidence showing otherwise.

Protil takes this stand: “That’s not much different from the defense in every cancer case. The difference is that a good loss of chance argument can significantly increase the damages.”