In medical malpractice cases, the general rule is that the plaintiff must prove causation through expert medical testimony in terms of probability to establish that the injury or death was more likely than not caused by the defendant’s negligence.
Loss of chance is a misunderstood area of medical malpractice litigation. Many lawyers and judges I deal with still do not understand the concept, even though it has been on the books for more than a decade.
The Ohio Supreme Court adopted the “loss of chance” theory in Roberts v. Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483. The holding was:
1. In order to maintain an action for the loss of a less-than-even chance of recovery or survival, the plaintiff must present expert medical testimony showing that the health care provider’s negligent act or omission increased the risk of harm to the plaintiff. It then becomes a jury question as to whether the defendant’s negligence was a cause of the plaintiff’s injury or death.
2. The amount of damages recoverable by a plaintiff in a loss-of-chance case equals the total sum of damages for the underlying injury or death assessed from the date of the negligent act or omission multiplied by the percentage of the lost chance.
3. To ascertain the amount of damages in a case of lost chance of survival or recovery, the trial court must instruct the trier of fact to consider the expert testimony presented and (1) determine the total amount of damages from the date of the alleged negligent act or omission, including but not limited to lost earnings and loss of consortium; (2) ascertain the percentage of the patient’s lost chance of survival or recovery; and (3) multiply that percentage by the total amount of damages.
What is not understood is the first part of the holding. In order for loss of chance to apply, the plaintiff must start out with a less than even chance of survival. In other words, if plaintiff has a 75% chance of surviving his condition or illness, and a doctor’s negligence reduces the odds to a 25% chance of survival, that would not be a loss of chance case because plaintiff in fact lost a better-than-even chance of survival. But if the plaintiff has a 40% chance of survival, and the physician’s negligence reduces the odds to 20%, then the loss of chance theory comes into play.
The Court also stated, “The plaintiff is not required to establish the lost chance of recovery or survival in an exact percentage in order for the matter to be submitted to the jury.” On the other hand, percentages are needed to do the math. This is another example of judicial imprecision that inevitably leads to further litigation to clarify the rule.
The loss of chance theory is frequently employed in cancer cases, where there has been a delayed diagnosis; such was the case in Roberts. Since there is so much literature on survival rates in cancer patients, these data are available in cancer cases, but are unusual in other types of malpractice cases.
