Geistfeld on Loss of Chance

Mark Geistfeld has posted to SSRN Duty-Preserving Tort Rules as an ‘Old Category’ for Justifying the Loss-of-Chance Doctrine in Medical Malpractice.  The abstract provides:

The loss-of-chance doctrine paradigmatically applies to wrongful-death cases in which a physician commits malpractice and seeks to avoid liability on the causal ground that the patient probably would have died anyway from the preexisting medical condition, even if it had been treated properly. By rejecting this argument and permitting recovery in these cases, courts purportedly have either relaxed the plaintiff’s ordinary burden of proving causation or otherwise redefined the compensable harm as the patient’s lost chance of survival rather than the wrongful death. Either modification of ordinary tort principles could have profound effects that extend well beyond the context of medical malpractice.

The loss-of-chance doctrine has divided courts across the country, with about half of the states rejecting, deferring, or not yet addressing it. This halting development suggests that it might be useful to consider whether the doctrine can be justified by established principles based on what Guido Calabresi has called “old categories” of tort law.

In other contexts, courts have adopted special rules to preserve the tort duty. Courts can rely on this “old category” to justify the loss-of-chance doctrine. For preexisting conditions that probably can’t be cured, a negligent physician could always avoid liability by invoking this exculpatory causal evidence, which in turn would negate the duty for the entire category of cases the duty governs. To preserve the duty, courts must preclude malpractice defendants from using the preexisting condition to defeat liability.

Under this approach, the defendant incurs liability for the wrongful death itself, with the lost chance of survival then factoring into the damages award. The ordinary measure of compensatory damages for wrongful death (or any permanent injury) depends on the patient’s life expectancy at the time of the malpractice, which incorporates the extent to which the patient’s preexisting condition had already reduced her life expectancy. The negligent physician accordingly incurs liability only for the extent to which the malpractice caused the patient to lose the remaining chance of surviving to a normal life expectancy—the same measure of damages courts use in the loss-of-chance cases. Loss of chance can be a new tort or an old one, depending on its underlying rationale.