Loss of a chance in medical malpractice litigation: expanding liability of health professionals versus providing justice to those who have lost

Abstract

The loss of a chance doctrine in medical malpractice litigation is essentially based on the perceived unfairness of denying recovery to a patient when a health provider's malpractice has reduced the patient's chance of a better outcome. It is the thesis of the article that loss of a chance must the recognised at law, notwithstanding that the chance is less than even or not subject to the benefit of statistical and/or scientific proof and that each lost chance should be assessed according to the value of that chance. Varying approaches to allocating value to the chance lost are examined both historically and internationally. The author contends that the policy arguments--which include potential for increased medical malpractice litigation, tainted reputations and an increase in professional indemnity policies--are insignificant when compared to the value and quality of human life and therefore cannot be supported.