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Bar News - October 16, 2009

Persponal Injury Law: “Two Roads Diverge…” Comparing “Loss of Chance” in NH & MA


Brad Holt
The so-called "Loss of Chance" doctrine is not new, but has garnered renewed interest recently as various jurisdictions reconsider it. Some, like Massachusetts, have recently adopted it. Others, like New Hampshire, have gone back and forth. To the extent there is a nationwide trend, New Hampshire’s experience reflects the tendency towards judicial acceptance and legislative opposition. It is usually considered in the medical negligence context but has been considered in other contexts as well, such as with legal malpractice claims, or the law school contracts class chestnut Chaplin v. Hicks (the English case of the beauty pageant contestant who, in 1911, won damages for her lost opportunity to win a contest and join a chorus line.)

The doctrine involves claims for money damages to compensate a plaintiff who cannot prove that a bad outcome "more likely than not" would have been avoided "but for" a different course of conduct by the defendant (a traditional causation burden), but who can prove that the defendant’s negligence worsened their odds. Understandably, a patient whose chances of survival worsen through another’s negligence will be dismayed. The question is whether this "lost chance" for a better outcome constitutes a legally cognizable claim.

Opponents of the doctrine argue a worsened prognosis should not be compensable if the patient were probably going to suffer the same outcome anyway (i.e., where there was a less than 50 percent likelihood of a better medical outcome even with optimal care), because there is no proximate causation. (Likewise, of course, if the patient ultimately has a 100 percent full medical recovery, despite worsened odds resulting from negligent care, then the patient arguably suffered no ultimate harm, and courts will not award money damages.)

NH Supreme Court Recognizes Doctrine

In 2001 the NH Supreme Court recognized the doctrine, holding that a plaintiff could recover for a loss of opportunity injury in her medical case, where the defendant doctors’ alleged negligence aggravated her preexisting injury. Lord v. Lovett, 146 NH 232 (2001). In that case, the plaintiff suffered a broken neck in an automobile accident, and she alleged misdiagnosis of her spinal cord injury and negligent initial care caused her to lose the opportunity for a substantially better recovery. Defendants moved to dismiss when plaintiff’s expert medical witness could not confirm her chance of a good recovery had moved (because of the alleged negligence) from "more likely than not" (i.e., greater than 50 percent likely), to "less than likely;" he could only say her chances for a good recovery were diminished.

The trial court granted dismissal but the Supreme Court reversed, holding that the plaintiff would state a cognizable claim if she could establish "the causal link between defendant’s negligence and the lost opportunity." Her damages would not be for the entire injury, however: "a loss of opportunity plaintiff must provide the jury with a basis upon which to distinguish that portion of her injury caused by the defendant’s negligence from the portion resulting from the underlying injury." The NH legislature subsequently rejected Lord v. Lovett by amending the statute on a plaintiff’s burden of proof, adding a new paragraph III:
The requirements of this section are not satisfied by evidence of loss of opportunity for a substantially better outcome. However, this paragraph shall not bar claims based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition. RSA 507-E:2, III By underscoring the requirement that a plaintiff prove the defendant "proximately caused the ultimate harm," this legislation confirmed a requirement that a plaintiff’s "pre-negligence" prognosis must be greater than 50 percent, (i.e., no claims allowed for Loss of Chance when the better outcome was not probable anyway). This is how it stands in New Hampshire, and the current legislative session reports no active bill which might alter the status.

Divergent Development in Massachusetts

Massachusetts has had a divergent development. The Supreme Judicial Court concluded last year that Massachusetts law permits recovery for a lost chance in a medical death action, in Matsuyama v. Birnbaum, 452 Mass 1 (2008). In that case, a jury found that a physician’s negligence was a substantial contributing factor in Mr. Matsuyama’s death despite his less-than-even chance of surviving the cancer before the negligence. Plaintiffs’ expert at trial testified (1) negligence caused a 4 year delay in Mr. Matsuyama’s cancer diagnosis, and (2) that if he had been diagnosed in 1995 his cancer might have been incurable. This chance of survival was established as a 37.5 percent chance of surviving the cancer. "Full" damages were established by the jury as totaling $875,000. With the trial court’s approval, and over the defense objection, the jury then applied a 37.5 percent factor (the lost chance) to the total, as the calculated value of the "lost chance" claim. The SJC affirmed.

The Court noted that the doctrine mitigates against an "all or nothing" rule which awards plaintiffs 100 percent of their full damages if a doctor’s negligence is proved to have proximately caused the injury, but which awards nothing if negligence ("regardless of how flagrant") was not the "but for" cause of injury. Under this system, if plaintiff’s pre-negligence prognosis included a 51 percent or better chance of survival, and the negligence results in a 0 percent chance of survival (i.e., death) the doctor will be liable for 100 percent of the damages (i.e. not merely 51percent, even though the doctor obviously did not "cause" the original cancer condition.)

But if the pre-negligence prognosis were only 49 percent (or less), the plaintiff would recover nothing. Thus, the solution to "all or nothing" was "all or a tailored something," where negligence is proved but the pre-negligence prognosis was already less than probable. Notably, the Court did not address the question of "a tailored amount" in the case of the 51 percent prognosis (to account for the recognized possibility of an outcome that existed even with non-negligent care). To date there has been no legislative enactment to change the SJC’s pronouncement of Massachusetts law.

Questions to Consider

It will be interesting to analyze these questions going forward:

  • Will there be more suits brought in Massachusetts in cases where negligence is easy to prove but causation more difficult?
  • Will this encourage venue shopping for plaintiffs who are able to choose?
  • If my doctor prescribed an H1N1 vaccine, increasing my chances of good health through the coming years, but yours did not, should you have a claim for the "loss of chance" to be even healthier?
  • Regarding application to other areas of the law, where alternate outcomes are hard to prove or are inchoate: Professor Lon Fuller argued years ago that the "expectancy" interest is less worthy of protection than the "reliance" interest – i.e. there is greater interest in restoring the status quo ante: agree or disagree? (See Joshua Goldberg, "What Clients are Owed: Cautionary Observations on Lawyers and Loss of a Chance," 52 Emory LJ 1201, at 1202 (2003), citing L.L.Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages: 1, 46 Yale L.J. 52, 56 (1936).)
Brad Holt is a partner at Nelson, Kinder, Mosseau & Saturley, and a member of the firm’s Medical Services Group, defending cases against doctors, hospitals, psychiatrists, labs, and dentists. He is a graduate of Dartmouth College and Boston University School of Law. He can be reached at

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