What is “Loss of Chance?”

What is “Loss of Chance…

Sometimes, a doctor’s negligent action (or lack of action) clearly leads to a worse result than would have occurred otherwise. If a patient goes into surgery to have his right leg amputated, and the doctor amputates the left leg instead, that is clear medical malpractice.

But what if instead, a patient went to the emergency room complaining of very recent symptoms consistent with a stroke, was examined, and was discharged? His symptoms got worse, so he returned the next day, and was again examined and discharged. He then contacted a family practice doctor, who ordered magnetic resonance imaging (MRI), but not on an expedited basis. Over a week later, when the patient finally got the MRI, it showed that he had suffered serious and permanent brain damage from a stroke.

About a third of the time, prompt treatment for the type of stroke the patient had would result in a much better outcome, with minimal or no lasting damage. Much of the time, however, even timely treatment would not have made a difference in the outcome. In other words, even if the patient’s doctors did everything right, the patient might very well have had the same result. Under those circumstances, does the patient have a valid claim for medical malpractice?

Oregon Case Law and the Loss of Chance Doctrine

The above hypothetical is actually the fact pattern from a real Oregon case, Smith v. Providence Health & Services, 361 Or 456 (May 11, 2017). Mr. Smith argued that had his doctors properly evaluated and treated his symptoms, he would have had a 33% chance of a much more favorable outcome. Because of their actions, he lost that chance. He sued his doctors and their medical groups (the defendants).

The defendants’ attorneys argued that Smith had not made a claim recognized by Oregon law and asked that the case be dismissed. Generally, to make a claim for medical malpractice, a patient must show:

  • A duty of care existed between the doctor and patient;
  • The doctor breached that duty;
  • The patient was injured as a direct result of the breach of duty; and
  • The patient suffered damages from the injury.

In Smith’s case, the doctor-patient relationship created the duty, and the doctors’ failure to promptly order the correct diagnostic testing and prescribe aspirin or clot-busting medicine was almost certainly a breach of that duty. There is no question that Smith suffered injury and damages.

The issue the defendants raised was that of causation. Since there was only a 33% chance of a positive outcome, they argued, Smith could not prove that the doctors’ actions caused his injury. The defendants also argued that “loss of chance” of a better outcome was not a recognized legal doctrine in Oregon (and that if it were, it would subvert the established legal requirement of proving causation in medical malpractice cases). The trial court dismissed the case, and the Court of Appeals upheld the dismissal.

Smith appealed the Court of Appeals ruling, and the Oregon Supreme Court reversed the ruling. The Supreme Court held that the loss of the chance for a better outcome was itself an injury. In other words, even though Smith couldn’t prove that his doctors’ inaction caused his serious and permanent brain damage, he could prove that their inaction destroyed his chance for a full or much greater recovery.

The Supreme Court also noted that the chance of recovery lost need not be greater than 50%; requiring that would force an injured patient to bear the entire cost of a doctor or facility’s negligence. The patient should be able to seek compensation for whatever the value of the lost chance was. A patient who loses a 90% chance of survival would have greater damages than one who loses a 10% chance.

Previous reported cases in Oregon did not rule out the possibility that loss of chance could be considered an injury all on its own. The Smith case was the first case to explicitly recognize the doctrine of loss of chance in Oregon.

What to Do if a Doctor Reduced Your Chance of Recovery or Survival

If your doctor initially misdiagnosed or failed to diagnose heart disease, cancer, or another condition, it is natural to wonder what might have happened had you been properly diagnosed sooner. Some types of cancer have a much higher survival rate if diagnosed early than after the cancer has had the chance to spread.

Unfortunately, only a few months can make the difference in some cases. It is hard not to feel cheated when you pursue a diagnosis in good faith, and the doctor’s negligence costs you the opportunity to live longer or to recover altogether.

Oregon residents now have the opportunity to be compensated for that loss of chance. But like any medical malpractice case, there is only a limited window in which to bring a claim under the loss of chance doctrine. If you have questions about loss of chance and medical malpractice, we invite you to contact The Fraser Law Firm P.C. to schedule a consultation.