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A new remedy for a life cut short: your client has suffered injuries that will severely shorten his or her life. In a growing number of states, such victims and their families can be compensated for the loss of those years.

Article Excerpt
For years, defendants have argued that a plaintiff's decreased life expectancy should limit claims for damages, including medical care expenses, lost wages, and the loss of life itself. The cruel irony is that if this were so, defendants would benefit from the severity of the injuries they inflicted.

Courts around the country are finally recognizing the inequity of this result, and the law is catching up with what jurors have intuited for years: that there is value in living itself and that defendants should pay for conduct that takes away years of life expectancy.

In a recent Illinois case, Townsend v. Little Company of Mary Hospital & Health Care, the Cook County Circuit Court allowed the jury instructions to state that the plaintiff may be compensated for the years of life expectancy lost because of the defendants' negligence. (1) It was the first case in that state to instruct the jury on this element of damages.

The dispute concerning decreased life expectancy is part of a broader debate in the courts over doctrines called "loss of chance" and "increased risk of harm." Both of these doctrines--like decreased life expectancy--focus on compensating plaintiffs for harm that defendants argue has not yet taken place.

"Loss of chance" is most commonly understood to be a reduced percentage chance of surviving an illness. (2) For example, if a plaintiff had only a 30 percent chance of surviving cancer when the disease was diagnosed, but would have had a 50 percent chance if the cancer had been properly diagnosed when she or he first visited the doctor, the plaintiff can sue for the loss of that 20 percent chance. A jury would put a dollar value on the plaintiff's life and award 20 percent of that total.

"Increased risk of harm" is a similar cause of action: It holds that the increased risk of a future harm (regardless of the percentage) is a present injury that should be compensated. (3) Because the analysis in both causes of action is so similar, many scholars and courts link the two while noting subtle differences in their application. (4)

Under each of these doctrines, as with decreased life expectancy, the harm at issue (illness or early death) has not yet occurred. The defendant's conduct, however, has increased the likelihood that this harm will occur. How, then, should courts compensate plaintiffs for an even t that is now more likely to occur but has not occurred yet and may not occur at all?

Traditionally, courts did not allow these theories on causation grounds. In a negligence suit, a plaintiff had to show that the defendant's breach...

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