The 'Loss of Chance' Rule as a Special Category of Damages in Medical Malpractice: A State-by-State Analysis

摘要

The incremental "loss of chance" rule is a doctrine relevant to medical malpractice cases dictating a damage calculation proportional to the victim's reduction in chance of medical recovery due to a medical professional's negligence. Variations in the rule or its application exist across the various states, with some states denying recovery under the doctrine altogether. Using rule descriptions and a state categorization scheme applied previously in the literature, a state-by-state investigation yields a comprehensive table displaying the status of the rule in each state. Legal citations and case excerpts are provided. Chief among the summary findings are that 24 states have adopted some version of the "loss of chance" rule, 17 have rejected it, four have deferred ruling on the doctrine, and five have yet to address the matter. Detailed accounts are given for the three states (Michigan, New Hampshire, and South Dakota) in which the judiciary had created a "loss of chance" rule, only to see the legislature rescind it.