Executive Summary
Plaintiffs can claim loss of chance when a medical condition is not diagnosed soon enough. The physician is responsible for damages equal to the potential for cure that was lost.
- Delay in diagnosing breast cancer is a frequent prompt for this claim.
- Loss of chance does not require evidence that the physician caused the final harm.
- Clear communication and documentation can mitigate loss of chance claims.
By Greg Freeman
Loss of chance can be a complicated allegation with the potential for a significant payout. Understanding how such claims arise is the first step in prevention.
When medical malpractice occurs, it often is the situation where there is either failure to diagnose or failure to properly treat a disease or condition, notes Armand Leone, Jr., MD, Esq., co-founder of the law firm of Britcher, Leone & Sergio in Glen Rock, NJ. In many situations, the severity of the disease or condition means that, even with proper treatment, a certain percentage of patients will be cured, but some do not improve and succumb to the disease.
A physician is liable for malpractice to the extent that his or her failure to properly treat the patient causes the patient to lose the chance for cure, he says. When there is preexisting disease that is not always curable, the physician is only responsible to pay damages in an amount equal to the percentage of cure that was lost due to negligence, he explains.
The seminal case in New Jersey on this issue, for example, is Scafidi v. Seiler, 119 NJ 93 (1990), which requires a plaintiff to demonstrate not only that the physician was negligent but that the delay in treatment was a proximate cause of increased harm to the patient.
Delay in diagnosis of breast cancer is one example where damages are divided between those that can be expected to occur even with proper treatment and those that were a result of negligence, he says.
If a cancer should have been diagnosed at an early stage, such as breast cancer that should have been diagnosed in stage 1 ductal carcinoma with an average 90% to 95% 10-year survival rate but instead was diagnosed at stage 3 with an average 10-year survival rate of 50% to 70%, means that the patient has lost about a 35% to 40% chance of avoiding the aggressive treatment and death, Leone explains.
But some patients diagnosed at stage 1 will not survive 10 years and will require more aggressive treatment when the cancer recurs, he says. If a jury were to award $1 million for all the damages suffered by the patient, the payout would be approximately $400,000, representing the 35% to 40% lost chance of cure, he explains.
“This same principle applies whether dealing with a delay in cancer diagnosis, delay in treating infection, delay in treating a heart attack, and other diseases where, despite best efforts, bad outcomes still occur,” he says. “It is the lost chance of cure that is recoverable for medical malpractice.”
The physician is not liable for a bad outcome that is known to result from a preexisting disease or condition even with proper care in a certain number of patients. However, the physician is responsible for any errors that increase the risk of harm and cause the patient to undergo more aggressive treatment and lose a chance for cure, Leone notes.
Understanding the loss of chance doctrine is crucial for both patients and healthcare providers, since it allows for recovery when a patient’s decreased chance of survival is caused by medical malpractice, says Andrew Pickett, JD, a trial attorney in Melbourne, FL.
“Essentially, it comes into play when a healthcare provider’s negligence reduces the patient’s likelihood of survival, even if they didn’t directly cause the final harm. Whether this doctrine is successful often depends on the jurisdiction and the ability to demonstrate that the negligence indeed resulted in a decrease in survival odds,” he says. “Providers or hospitals can defend against such claims by meticulously documenting patient care and creating robust policies and procedures to minimize errors. Detailed documentation can serve as evidence showing adherence to standards of care, which can be pivotal in avoiding allegations altogether.”
Healthcare providers and institutions can implement several strategies to avoid loss of chance claims, says Sham Singh, MD, a psychiatrist with Winit Clinic in Miami.
“I believe maintaining meticulous and comprehensive medical records is essential. This includes detailed notes on patient assessments, treatment plans, and the rationale behind clinical decisions,” he says. “Clear documentation can demonstrate adherence to established protocols and illustrate that informed consent discussions were thorough, showcasing that patients understood their treatment options and associated risks.”
Developing and adhering to standardized clinical protocols can help ensure that all patients receive consistent, evidence-based care, Singh says. Regularly reviewing and updating these protocols based on the latest medical guidelines can help providers mitigate the risks associated with medical negligence, he adds.
“Training staff in effective communication is crucial. Encourage open dialogues with patients about their conditions, treatment options, and prognosis,” Singh says. “Providing clear explanations helps manage patient expectations and fosters trust, reducing the likelihood of misunderstandings that could lead to legal claims.”
The loss of chance doctrine allows a plaintiff to recover damages when a doctor’s negligence reduces their chance of a better outcome or survival, even if the chance was less than 50% to begin with, says M. Denzell Moton, JD, founding partner of the Moton Legal Group in Atlanta. For example, a patient with a 40% chance of surviving cancer who only had a 20% chance because of a missed diagnosis could recover 20% of the total damages, he explains.
To successfully bring a loss of chance claim, a patient must prove the physician’s actions decreased their chance, Moton notes. Defenses include arguing that the initial chance was low or that treatment did not affect the chance, he says.
“The best defense is education, policy, and documentation. Physicians should document diagnosis, options, and reasons for treatment,” Moton says. “Hospitals need policies on diagnosing and treating serious conditions. Educating staff on conditions prone to loss of chance claims, like cancers, helps avoid them.”
For a plaintiffs’ attorney, the most valuable cases are those with strong evidence of negligence and thorough documentation showing how care was substandard and directly affected a patient’s chance of survival or recovery, Moton notes. By focusing on education, policy, communication, and community outreach, providers can limit liability and provide better care.
“An educated, motivated staff and proactive risk management are the best ways to avoid loss of chance and other malpractice claims,” he says.
Two Main Types of Claims
There are only two areas where these types of claims normally happen, says Henry Norwood, JD, an attorney with the Kaufman Dolowich law firm in San Francisco. The first is misdiagnoses, in which a provider does not recognize indications of disease, fails to properly test, or misconstrues symptoms, he says. The patient subsequently is found to have a serious ailment, and the misdiagnosis reduces the chance of survival, he explains.
“The second biggest area normally happens in hospitals, specifically where a patient is admitted, and they’re essentially forgotten about or neglected while they’re in a patient room. The patient is sort of sitting there with an emergency condition, and they’re not getting treatment,” Norwood says. “Either the patient passes away, or the providers finally get to them, and they’re able to treat them. But, as a result, they have some sort of a debilitating condition just because they weren’t seen quickly enough.”
Loss of chance claims have been around for a long time but they are becoming more common because of a shift in the law, Norwood says. There used to be a requirement that the lost chance that the patient suffers had to be substantial, and what that meant was never clear, he says. But in more recent years, with more expert opinions entering into the courtroom, courts are now getting more into a numeric specification.
“So now, instead of just saying it needs to be substantial, we say it needs to be 15% or 20% or whatever courts settle on for a specific percentage-based number,” Norwood says. “And, as a result, we’re seeing cases that allow 14% as sufficient for a loss of chance claim to go forward, whereas only a 1% to 3% chance is not substantial enough. As a result, there are more loss of chance claims being allowed, and they’re becoming more popular.”
Many Specialties Affected
Loss of chance claims can arise in many types of medical care, notes Ryan Doyle, DDS, a dentist with Capitol Dental in Boise, ID.
“As a dentist, I have seen cases of alleged loss of chance in my practice, though, fortunately, none have been successful so far. The doctrine allows a patient to claim damages for losing a chance at a better outcome from treatment, even if the chance was less than 50-50,” he says. “For example, a patient with a 40% survival prognosis who alleges improper diagnosis or delay in treatment could claim 40% of the total value of their life.”
To prove loss of chance, patients must show negligence caused a material reduction in their chance of survival or better outcome, and this often relies on expert testimony about standards of care, he says. Defenses include arguing the patient’s prognosis was very poor even with proper care or that the physician’s actions did not actually reduce their chance.
“The best ways I have found to avoid loss of chance claims are education, policies, and documentation. My practice educates staff on serious conditions prone to these claims, like cancers, and has clear policies on diagnosing and treating them,” Doyle says. “I document patients’ conditions, treatment options discussed, and reasons for the chosen course of care. Risk management helps avoid or defeat many loss of chance claims. While not foolproof, these steps have served my practice well so far.”
Having consulted many high-net worth clients on loss of chance cases, Bill Boersma, a life insurance consultant in Grand Rapids, MI, says proving a physician’s negligence directly caused a loss of chance at better outcomes or survival is challenging. It is possible through expert testimony and data analysis of proper standards of care, but a patient’s initial chance of survival must be reasonably high to begin with, he says.
“For example, I reviewed a case where a 40-year-old otherwise healthy patient had a 50% to 60% chance of surviving colon cancer if diagnosed within four to six months. However, their physician missed obvious symptoms for over a year,” Boersma says. “By the time the patient received treatment, their chance of survival dropped to 10% to 15%. We were able to prove loss of chance and won a sizeable settlement.”
The key for providers is documentation, education, and managing risk, he says. Physicians must properly document patient conditions, options discussed, and rationale for treatments. Hospitals need clear policies for diagnosing and managing serious conditions, he says.
Educating staff about loss of chance-prone conditions, such as certain cancers, is critical, Boersma says.
“When done right, loss of chance claims can often be avoided or defeated,” he says. “Overall, the loss of chance doctrine, while concerning for providers at first, can encourage better care and outcomes when accounted for properly.”
These claims often come about based on a delay in diagnosis alleged to have deprived a patient of vital treatment that potentially would have prolonged their lifespan, says Alex Keoskey, JD, partner with the Frier Levitt law firm in Pine Brook, NJ. These claims most often occur when the plaintiff is undergoing treatment for cancer, and the disease spreads to other body parts and/or progresses to more significant stages, diminishing the patient’s chances of survival, he says.
Whether any medical malpractice claim is successful depends to a large degree on the quality of liability experts used by counsel for both sides, he says. As the burden of proof falls on the plaintiff, it is essential that their expert can help convince the jury that it is more likely than not that the lack of diagnosis created a lost chance, Keoskey says. Counsel must ensure that their chosen expert possesses the skill, education, training, and experience to be effective at not only conveying complex medical concepts but is able to withstand cross-examination, he advises.
“The most practical means of defending these claims is for the defendant physician’s counsel to introduce evidence demonstrating that the alleged failure to timely diagnose would have made no practical difference in the patients’ medical outcome,” he says. “Another method is to demonstrate that the plaintiff contributed to his or her own harm by failing to mitigate their damages — for example, by failing to comply with the defendant doctor’s instructions or failing to be compliant with the prescribed medication or treatment regimen.”
In traditional malpractice cases, a patient must show that the negligence directly caused their injury or death, notes Sean Ormond, MD, of Atlas Pain Specialists in Glendale, AZ.
However, the loss of chance doctrine comes into play when a patient’s prognosis is already poor, but a provider’s negligence worsens their odds of survival or recovery. The plaintiff has to prove that there was a measurable loss in the likelihood of a better outcome caused by the healthcare provider’s actions, Ormond notes. Loss of chance claims are most common in cases of delayed diagnosis or misdiagnosis.
Success in a loss of chance claim can vary, he says. Courts in some states recognize this doctrine while others do not, he says.
“Even where the doctrine is allowed, proving the case can be complex because the plaintiff must show, often through expert testimony, that the provider’s negligence directly reduced the patient’s chances of survival by a measurable amount,” Ormond says. “If the patient’s initial chance of survival was extremely low to begin with, it may be difficult to prove a substantial loss that warrants compensation. However, in cases where there is clear evidence of delayed diagnosis or treatment, such claims can be successful.”
Providers and hospitals can defend against these claims by challenging the evidence, he says. For example, they might argue that the patient’s condition was so advanced that the negligence did not actually make a difference in the patient’s outcome, Ormond says. They also can show that the standard of care was followed and that any alleged delay or misdiagnosis did not significantly reduce the patient’s chances.
Expert testimony often is critical in these cases. Hospitals also might focus on the idea that, even without the alleged error, the patient’s prognosis was poor and wouldn’t have improved, he says.
The best way for providers and hospitals to protect themselves against loss of chance allegations is through thorough documentation and adherence to clear policies, Ormond says. Documenting every aspect of the patient’s care, including their initial condition, discussions of prognosis, and all decisions made regarding diagnosis and treatment, is key, he says, as is having protocols in place for timely diagnosis, regular follow-up, and second opinions for serious conditions.
“Additionally, it is important to communicate clearly with patients and families about treatment options, risks, and chances of survival ensures transparency, which can protect providers from claims of negligence,” Ormond says. “By staying proactive and maintaining clear records, healthcare providers can often prevent these kinds of lawsuits from arising in the first place.”
Sources
- Bill Boersma, Grand Rapids MI. Email: [email protected].
- Ryan Doyle, DDS, Capitol Dental, Boise, ID. Telephone: (208) 336-9333.
- Alex Keoskey, JD, Partner, Frier Levitt, Pine Brook, NJ. Telephone: (973) 852-1880. Email: [email protected].
- Armand Leone, Jr., MD, Esq., Co-Founder, Britcher, Leone & Sergio, Glen Rock, NJ.
- M. Denzell Moton, JD, Founding Partner, Moton Legal Group, Atlanta. Telephone: (404) 738-5471.
- Henry Norwood, JD, Kaufman Dolowich, San Francisco. Telephone: (628) 219-9814. Email: [email protected].
- Sean Ormond, MD, Atlas Pain Specialists, Glendale, AZ. Telephone: (602) 492-9821.
- Andrew Pickett, JD, Melbourne, FL. Telephone: (321) 503-4014. Email: [email protected].
- Sham Singh, MD, Winit Clinic, Miami. Telephone: (855) 503-8873.
Greg Freeman has worked with Relias Media and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and provides research and content for other Relias Media products. In addition to his work with Relias Media, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.
Loss of chance can be a complicated allegation with the potential for a significant payout. Understanding how such claims arise is the first step in prevention.
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