Suppose a client explains to you that he is dying of cancer and, according to the client’s tale, the doctor diagnosed the cancer — but the diagnosis was late. When the attorney confronts a missed diagnosis or missed treatment for a medical malady, consider the recovery avenue known as “loss of chance.”
The typical rule in tort litigation is a simple one. The patient is entitled to recover for damages that the tortfeasor inflicted, but there must exist a real and direct line of causation. Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928). In the medical negligence setting, this general rule requires the plaintiff to show that, absent the defendant’s negligence, the plaintiff would have lived a normal life. The plaintiff must show that the defendant caused certain damages; the damage conundrum surfaces when damages are theoretical and uncertain. Courts created the loss-of-chance recovery to deal with this theoretical damage analysis.
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