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Making up for lost time: your client could have recovered from an illness, if only his or her physician had made a correct diagnosis and provided appropriate treatment. Use the loss-of-chance doctrine to hold negligent doctors accountable.

Article Excerpt
The premise of a failure-to-diagnose medical negligence lawsuit is simple: A doctor fails to properly diagnose a medical condition, adversely affecting the patient's health, and the patient or his or her family seeks compensation. But proving causation can be complex. The physician did not cause the underlying medical condition, and the patient might not have recovered even if the condition had been properly diagnosed. Satisfying the traditional burden of proof with regard to causation tan be extremely difficult for the plaintiff, if not impossible.

Under the traditional definition of "proximate cause," the plaintiff must prove that if the defendant had not been negligent, he or she would not have suffered the injury. Applying this traditional definition in a failure-to-diagnose case requires file plaintiff to prove that, at the time of the failure to diagnose, he or she had a 50 percent or greater chance of recovery or survival; a plaintiff whose chance of survival was less than 50 percent will have no cause of action. A significant minority of states subscribe to this approach. (1)

Fortunately, most jurisdictions that have considered this issue have determined that the traditional definition of "causation" should not apply when a doctor's negligence reduces a patient's opportunity to recover. These jurisdictions instead subscribe to some form of the loss-of-chance doctrine, which allows the injured patient or his or her survivors to be compensated for the "lost chance" of recovery or survival resulting...

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