A hypothetical: The patient was diagnosed with cancer at Stage IV, when it had become untreatable, and unfortunately passed away. Her estate sued on the ground that her physician should have diagnosed the cancer when it was Stage III. Authoritative statistics indicate that if the cancer had been diagnosed at Stage III, the patient would have had a 40 percent chance of survival. The patient’s estate sues for wrongful death damages. The defendant argues that the estate cannot show that her malpractice was the cause of the demise. What results?
This is naturally enough termed the “loss of a chance” situation. The highest courts of most states have offered varied answers to this question. The Court of Appeals affirmed without opinion in Kallenberg v. Beth Israel Hospital, a case of this type, almost 40 years ago but has not addressed this subject since.1
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