“Loss of chance” doctrine in medical liability

By S. Jay Jayasankar, MD, and Sarah Elisabeth Curi, JD, MPH

In two landmark decisions in 2008, the Supreme Judicial Court (SJC) of Massachusetts ruled that state law permits recovery for a “loss of chance” in medical malpractice cases. As a result, Massachusetts plaintiffs may now receive compensation for a reduction, resulting from a doctor’s negligence, in their “chance” for a more favorable outcome, even if that chance is less than 50 percent.

Traditionally, if the jury finds a physician’s negligence was the probable cause of the patient’s death or injury (defined as greater than 50 percent chance, or by a “preponderance of the evidence”), the patient is awarded the entire damages (eg. projected life-expectancy earnings). If, however, the jury concludes there is less than a 50 percent chance or no preponderance of the evidence that malpractice caused the injury, the plaintiff receives nothing.

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