Whose Loss Is It Anyway? Effects of the “Lost-Chance” Doctrine on Civil Litigation and Medical Malpractice Insurance


Steven R. Koch
88 N.C. L. Rev. 595 (2010)

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This Comment explores the “lost-chance” doctrine—a theory of recovery unique to medical malpractice litigation that permits a patient to recover damages from a doctor without needing to establish a more-likely-than-not causal connection between the doctor’s negligence and the patient’s injury.  Using two recent state supreme court decisions as a vehicle for analyzing the policy implications surrounding the doctrine, the Comment recounts the doctrine’s evolution, its current status amongst the fifty states, and its prevalence in the context of state tort-reform efforts.  The Comment then analyzes statistical and empirical data to determine whether a connection does, in fact, exist between a particular state’s adoption of the lost-chance doctrine and either (a) the prevalence of medical malpractice litigation in that state or (b) an increase in malpractice insurance rates amongst doctors practicing in that state.  The Comment ultimately concludes that the doctrine’s effect on both the prevalence of medical malpractice litigation and malpractice insurance rates is negligible, and as such, the benefits afforded to citizens of states choosing to adopt the doctrine outweigh any speculative drawbacks that adopting the doctrine may potentially create.

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