State laws on loss of chance of survival continue to evolve

January 9, 2013

Loss of chance of survival laws continue to be in a state of flux. See what's changed and what might change in the future.

As cases arise, states are changing their loss of chance of survival laws. Consider this influential example: Suppose you have been treating a 42-year-old patient who has had gastric symptoms for 4 years. You then order tests that reveal an adenocarcinoma. The patient dies of cancer 5 months later.

The patient’s estate sues, claiming that your failure to diagnose and treat 4 years ago deprived the patient of the chance of survival. But the chance of survival was never very good.


If the personal injury of an adult results in death, his or her estate can bring a claim on behalf of the deceased for both malpractice and wrongful death.

The allegation of malpractice is a “derivative” lawsuit because the estate derives its legal claim from the existing claims of the deceased. The estate can allege economic damages, such as additional medical costs and lost earnings. The basic calculation is the amount of earned income multiplied by the probable years until retirement.

The estate also can claim non-economic damages, such as the pain and suffering that would have been damages to the injured person had he or she survived and brought the lawsuit on his or her own behalf. Pain and suffering usually is a treble of the alleged out-of-pocket economic damages.

A wrongful death lawsuit is not brought on behalf of the deceased but on behalf of the surviving dependents of the deceased, such as a spouse or a child. Claims can be made for loss of companionship, society, services, and support.


Any reduction in life expectancy that can be attributed to a deviation in the standard of care always has been grounds for a lawsuit. If it can be proved that negligence deprived the patient of treatment that could have altered the outcome of the disease process, you may be held liable.

Here is the problem: Are you liable if you miss the diagnosis but the patient has only a small chance of survival? Traditional law held that the chance of survival must be 50% for a case to be actionable.

The standard of proof in civil law-including malpractice-is that the plaintiff must prove the case by a preponderance of evidence. That means that the court must believe malpractice occurred more likely than not (more than a 50% chance).

Malpractice always deals with probabilities. If your negligence was the probable cause of the patient’s death-that is, more than a 50% chance or no preponderance of evidence that the negligence caused the injury-then the patient is awarded the entire amount of damages. If the jury concludes there is a preponderance of the evidence and less than a 50% chance, then you get a defense verdict.

The elements that the plaintiff must prove by a preponderance of the evidence are: duty, falling below the standard of care, proximate cause, and damages. Proximate cause is tricky; would the patient have had the damages “but for” your negligence? Was your failure to diagnose the cancer the proximate cause of death? If it can be proved that death was an outcome of the disease process itself and not the result of your negligence, then no proximate cause and no liability exist. In other words, even if you missed the diagnosis, you wouldn’t be liable because it’s likely that the disease would have resulted in death even with proper treatment. In the example at the beginning of this column, the patient had cancer and probably would have died regardless of your negligence.

The preponderance of evidence burden of proof results in this standard: The plaintiff wins if more than a 50% chance of survival exists and you win if it is less than 50%.


The laws on loss of chance of survival vary by state and are a product of case law. As cases arise, about two-thirds of the states are changing from the traditional 50% chance rule to allow any loss of chance to be actionable. At this time, the majority of states have abandoned the 50% rule.

The most interesting case using the new theory-mostly because the court clearly and conclusively explains its reasoning-emanates from Massachusetts.

The scenario at the beginning of this column is the case underlying the cause of action and change of law in Massachusetts. The court found for the plaintiff, stating, “This court concluded that Massachusetts law permits recovery for a loss of chance in a medical malpractice wrongful death action, where a physician’s negligence reduces or eliminates a patient’s prospects for achieving a more favorable medical outcome, even if the possibility of recovery was less than even prior to the physician’s tortious conduct.”

The Massachusetts court clearly upheld the preponderance of evidence standard of proof. It said: “Further, the court concluded that in order to prove loss of chance, a plaintiff must demonstrate by a preponderance of the evidence that the physician’s negligence caused the patient’s likelihood of achieving a more favorable outcome to be diminished; moreover, the court rejected the contention that a statistical likelihood of survival was a mere possibility and, therefore, speculative, and emphasized that the adoption of the loss of chance doctrine was limited to medical malpractice actions.”

The court in the Massachusetts case did not alter the standard of proof or the elements of malpractice. What it did was shift the focus from proximate cause to damages.

The court said it adopted the loss of chance of survival not as a theory of causation, but as a theory of injury. The plaintiff still would have to prove all four elements of malpractice, including proximate cause. The standard of proof is still by the preponderance of the evidence, but the damage would be adjusted according to the chance of survival. The court stated: “A substantial and growing majority of the states that have considered the question have endorsed the loss of chance doctrine, in one form or another, in medical malpractice actions. We join that majority to ensure that the fundamental aims and principles of our tort law remain fully applicable to the modern world of sophisticated medical diagnosis and treatment.”

Calculation of damages in such cases is complicated. The traditional rule was fairly simple: all or nothing. The new law often takes a proportional damages approach, however. Many courts instruct juries to assess the damages that would be recoverable for the patient’s death or injury and then reduce that figure to the percentage chance that was lost as a result of the malpractice. One process is to calculate the chance of survival at the beginning (45%, for example) and at the time of treatment (10%) and then award the plaintiff the percentage difference (35%) multiplied by total damages.


Loss of chance of survival is a complex and evolving area of the law. It may be changing as a result of improved medical statistics and/or public sentiment. Increased statistical data-especially in oncology and sociopolitical policy-are creating an evolution in these laws.

The new common law tendency has many critics. Many of those critics are doctors. The unsettled boundaries of the doctrine have left it open to criticisms, such as that the loss of chance doctrine upends the long-standing preponderance of the evidence standard, alters the burden of proof in favor of the plaintiff, undermines the uniformity and predictability central to tort litigation, results in an expansion of liability, and is too complex to administer.

The trend toward recognizing as actionable any loss of chance is likely to continue. Medical research information has improved partially because of the focus on evidence-based medicine. Experts are able to testify on chance of survival with a reasonable degree of medical certainty. Probabilities are fairly authoritatively expressed in oncology and likely will spread to other specialties. Judges and juries will be more likely to award damages if they have a more specific estimate of the chance of survival when the doctor-patient relationship was established and when treatment was rendered.

The sociopolitical reasons underlying the change are succinctly stated by the Massachusetts court. The physician damaged the patient because he “deprived him of something of value” for which the patient deserved to be compensated as a matter of “fairness.”

Then there is the somewhat anomalous view that a doctor would be liable if the patient died but not liable if the patient could have survived. Long-term sociopolitical effects include more lawsuits filed by plaintiff attorneys, slight malpractice insurance price increases, and more attention by doctors to their elderly or severely ill patients.

The author is a health law attorney in Mount Kisco, New York, and a Medical Economics editorial consultant. Do you have a health law question you would like to have our experts address in this column? Send it to Also engage at and