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(314) 500-HURTMedical malpractice typically refers to situations where a medical professional’s negligence leads to a patient’s harm. But if a doctor didn’t cause you harm and instead just reduced your chances of a favorable outcome, you still deserve compensation. Rather than focusing solely on direct injuries, the “loss of chance” doctrine focuses on the lost opportunities for a patient to recover or survive due to a medical professional’s negligence.
Burger Law is a St. Louis-based injury and malpractice law firm that fights on behalf of the injured and their families. If you believe you or a loved one has been harmed or lost a chance at recovery because of a healthcare professional’s negligence, speak to a personal injury attorney today at (314) 500-HURT or contact us online for a free consultation. You do not pay until we win your case.
The “loss of chance” doctrine is a legal concept that recognizes a patient’s right to pursue compensation when a medical professional’s negligence results in the patient losing a chance of recovery or survival. Unlike traditional medical malpractice claims, where the focus is on a direct injury caused by a medical professional’s negligence, the “loss of chance” doctrine is centered around the idea of a lost opportunity.
For example, picture a scenario where a patient seeks medical attention for a bad cough. Given the patient’s symptoms and medical history, the standard of care (what a reasonable and prudent doctor would have done) would have been to screen for lung cancer, however the physician fails to run the appropriate tests and gives the patient a prescription for cough medicine. Six months later, the patient’s symptoms have significantly worsened, and a second doctor finally diagnosed the lung cancer.
While the first doctor is not responsible for the lung cancer, their failure to diagnose dropped the patient’s cancer survival rate from 60 percent to 30 percent. While the patient may still have faced challenges with or without the doctor’s negligence, the “loss of chance” doctrine allows the patient to claim damages for that lost 30 percent chance of a better outcome.
Lost chance of survival claims in Missouri were made possible after Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. Apr. 2, 1992). Previous Missouri case law held that doctors had to cause an injury in order to be held liable for medical malpractice. This is due to the need for causation in personal injury cases. However, the Missouri Supreme Court concluded that: A patient with cancer, like Mr. Wollen, would pay to have a choice between three unmarked doors — behind two of which were death, with life the third option. A physician who deprived a patient of this opportunity, even though only a one-third chance, would have caused her real harm.
Because of that, the court argued: the patient does suffer a harm when the doctor fails to diagnose or adequately treat a serious injury or disease. The harm suffered is not, however, the loss of life or limb. The harm is the loss of the chance of recovery.
The “loss of chance” doctrine can be applied to cases where a loved one died (a “lost chance of survival claim”), where a family would file a medical malpractice claim instead of a wrongful death suit because a physician did not cause the illness and there is always the chance your loved one would have died anyway. Loss of chance can also be applied if you don’t pass from your illness, but have a significantly more difficult recovery or worse health outcome that leads to further damages.
In medical malpractice cases, determining damages can be more straightforward: calculate medical bills, lost wages, pain and suffering and so on. However, the “loss of chance” doctrine introduces a unique challenge in quantifying damages. Here’s how damages are typically approached in these cases:
$1,000,000 (total damages) x .30 (30 percent) = $300,000 in final compensation
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The “loss of chance” doctrine doesn’t apply to every medical malpractice scenario. However, there are particular situations where it might be the best path to maximum compensation:
One of the most common scenarios involves a physician’s failure to diagnose a condition promptly. For example, if a patient’s cancer could have been detected and treated earlier, but the doctor negligently failed to identify it, leading to a decreased chance of survival. Similarly, if a patient presents clear symptoms of a heart attack, but the doctor misdiagnoses it as indigestion, leading to a worse outcome, the “loss of chance” doctrine might be applicable.
Medical professionals might misinterpret tests, leading to a wrong diagnosis or overlooking a critical condition. For instance, if a radiologist fails to spot a tumor in an imaging test, which subsequently grows and becomes more challenging to treat.
Administering the wrong medication or the wrong dosage can exacerbate a patient’s condition or introduce new complications. If these errors reduce the patient’s chances of recovery or survival, they might have a “loss of chance” claim.
Sometimes, general practitioners might fail to refer a patient to a specialist when symptoms suggest a more severe condition. Delays in seeing a specialist can reduce the chances of successful treatment. Similarly, if a doctor doesn’t schedule follow-up appointments to monitor a condition or the effects of a treatment, it might lead to a reduced chance of optimal outcomes.
Hospitals are critical junctures in your treatment journey. There are instances where your condition requires specialized care, equipment or expertise that might not be available in the current facility. Failure to admit a patient in need of urgent care or delay in transferring to a better-equipped facility can rob the patient of crucial treatment time, thus reducing their chances of recovery or survival.
For patients and their families dealing with devastating illnesses and tragedy, loss of chance claims are not just about seeking compensation, but about reclaiming the potential of a life once full of possibilities. If you or a loved one suspect that you’ve been subjected to a diminished chance of recovery or survival because of a healthcare professional’s negligence, you need to act promptly. We only get one shot at life, and you only have one chance at maximum compensation. Reach out today and let us fight for the chances you deserve. Call Burger Law at (314) 500-HURT or fill out our online contact form for a free consultation.
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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Gary Burger who has more than 30 years of legal experience as a practicing personal injury trial attorney. Gary’s robust legal knowledge is recognized by his peers as demonstrated by his industry awards and frequent Continuing Legal Education (CLE) lectures.
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