Loss of Chance
- Not all states allow recovery for loss of chance. Those who do usually limit it to medical
malpractice cases.
Dillon v. Twin State Gas and Electric Co.-
Facts- Boy was sitting on a girder 19 ft. above a public bridge, he lost his balance and grabbed
an exposed wire w/ a high voltage current. He was electrocuted and died. The company
should’ve insulated the electric wires.
Holding- “If it were found that plaintiff would’ve been killed by the fall w/o regard to the wire,
then the def. would not be liable. If plaintiff would’ve only fallen w/ injury, def. would be liable
for loss of life or earning capacity.” The company’s negligence potentially caused the boy to die
instead of just being injured.
Matsuyama v. Birnbaum
F. Matsuyama had been experiencing gastric distress symptoms since about 1988. He started
treating w/ Dr. Birnbaum in 1995. Matsuyama complained of moles that developed on his body
and reported severe stomach pain. The doctor ordered a test for a bacteria associated w/ gastric
cancer. The test came back positive, but Birnbaum failed to order further tests to determine
whether Matsuyama had gastric cancer. Patient was not diagnosed w/ cancer until 1999.
Because of D’s negligence, Matsuyama was not diagnosed sooner when it could have still been
treatable. Matsuyama died. His estate sued Dr. Birnbaum for loss of chance. P was unable to
prove “but-for” causation; “but for D’s medical malpractice, Matsuyama would not have died.”
- This is not true b/c Matsuyama most likely would have died regardless of the doctor’s
negligence. When Matsuyama came in to see Dr. Birnbaum, he already had stage 2
cancer and only had a 37.5% chance of living.
H. To prove loss of chance a plaintiff must prove, by a preponderance of the evidence, that the
physician’s negligence caused the injury of diminished likelihood of a more favorable medical
outcome. The injury is defined as the loss of chance. Dr. Birnbaum is responsible for 37.5% loss
of chance.
If it can be established that “but for D’s medical malpractice, Matsuyama would not have lost
that 37.5% chance of living”, then P can recover damages proportionate to the decedent’s
survival prospects that the physician’s negligence destroyed. Court calculates the loss of chance
by multiplying the full wrongful death damages ($875,000) times the chance of survival (.375) =
$328,125 plus pain and suffering.
How to calculate loss of chance damages in med. malpractice cases
1. Find total damages allowable for the death
2. Calculate chance of survival but for negligence
3. Calculate chance of survival with malpractice
4. Subtract amount in step 3 from step 2
5. Multiple the difference in step 4 by the chance for survival in step 1.
Ex. 45% chance of survival w/o negligence (STEP 2)
15% chance of survival after malpractice (STEP 3)
30% (STEP 4) x total wrongful death damages (STEP 1)
.30 times 600,000 (STEP 1) = 180,000 (STEP 5) + P & S
If you have over a 50% chance of living when you begin to treat w/ a doctor, then you can prove
“but for” causation.
- P is able to recover full damages b/c malpractice more likely than not caused the injury.
MULTIPLE DEFENDANTS
RULE- WHEN TWO PARTIES ARE NEGLIGENT AND INJURY RESULTS, THE
PARTIES WILL BE HELD JOINTLY AND SEVERALLY LIABLE, EVEN IF ONLY
THE NEGLIGENCE OF ONE PARTY COULD HAVE BEEN THE CAUSE OF THE
INJURY; BURDEN SHIFTS TO THE DS TO PROVE BY A PREPONDERANCE OF
THE EVIDENCE THAT THEY WERE NOT THE CAUSE OF THE INJURY.
Summer v. Tice- BURDEN SHIFTING EXCEPTION
F. Three boys were hunting, one got shot. Both Ds shot at the quail, shooting in the P’s direction.
The view of the Ds w/ reference to the plaintiff was unobstructed and they knew his location.
Both Ds were using the same gauge shotgun and the same size shot. P could not prove which one
caused the eye injury or the upper lip injury, but only one of them did it. Judge allowed P to sue
them both.
H. If both Ds acted negligently and breached in some way, doing an activity they engaged in
simultaneously, then P has sufficiently demonstrated causation to get to a jury. “Where two or
more persons by their acts are possibly the sole cause of harm, defendant has the burden of
proving that the other person, by his act, is actually the sole cause.” In the absence of proof that
indicates which specific D was responsible for the P’s injury, all Ds can be jointly and severally
liable.
** NOTE that the court analogizes to Ybarra b/c the P there was also not able to prove who
caused the injury. However, res ipsa and causation are NOT the same. Res ipsa says that if you
have this injury, then there has to have been negligence. Causation says that the breach is what
led to the injury.
Joint and several liability- P can recover full damages from either defendant that was negligent.
The others would be forced to seek contribution to pay back for whatever percentage responsible
they are.
Several liability- If P sues everybody, the harm is split up according to the percentage of fault
and percentage of contribution of that fault.
