A New York court declined to rule earlier this month on whether medical malpractice plaintiffs have the right to recover under the legal theory of "Loss of chance" in this state. Judges in states recognizing "loss of chance" call it fairer than the 'failure to diagnose' claim which exists in New York, because it goes a step further according to The Doctor's Company, a medical malpractice insurer. To be successful on a "failure to diagnose claim," injured victims have to prove that the failure to diagnose was a substantial factor causing their injury. But in a "Loss of chance" claim, injured victims need only show that they would likely have had a better outcome from their treatment had the doctor given proper advice. For example, if a doctor failed to diagnose cancer but the patient was likely to die anyway, the patient could still sue for the resulting diminished chance of getting better, no matter how unlikely.

The case that brought this question before the court involved medical personnel who improperly inserted a breathing tube and perforated an elderly woman's esophagus. The woman came to the hospital for a suspected stroke, and doctors did not recognize the injury they caused to her throat until days later. She did not die from the esophagus injury, but her lawyers argued that by not diagnosing it earlier, doctors caused her to lose her chance at a better outcome from her treatment.

The Court of Appeals, New York's highest court, declined to rule whether the "loss of chance" claim was valid in this instance because the defendants made a procedural error preventing them from challenging the injured patient's victory at trial. A jury awarded the Plaintiff's widow $1 million, which was reduced to $800,000 by an appeals court.

Twenty-two states recognize "Loss of chance" in medical malpractice cases. Ironically, the legal doctrine originated in New York when a court held in 1868 that a farmer was able to sue for his loss of chance at profit when a landowner went back on his promise to let the farmer use his land. Though New York recognizes the legal theory in terms of business, it has yet to apply it to medical malpractice cases. But it's important to note that the court did not rule that the doctrine couldn't apply to medical malpractice cases either. We'll have to wait for another case to test the theory.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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