In many medical malpractice cases, the defendant physician's conduct did not “cause” the plaintiff to develop the particular condition that resulted in injury. Instead, it is often claimed that by failing to diagnose a condition such as cancer, or institute treatment at an earlier time, the defendant deprived the plaintiff of the opportunity for a better outcome—the so-called “loss of chance” doctrine. Confusion persists as to the plaintiff's burden of proof and the appropriate measure of damages in such cases. In addition, a possible criticism of the doctrine is that it runs contrary to the plaintiff's burden of proof.

In its recent decision in Wild v. Catholic Health System,¹ the Court of Appeals held that the issue of whether New York recognizes the “loss of chance” doctrine was unpreserved. In that case, the plaintiff's decedent, an elderly woman, suffered a perforation of the esophagus during a complicated intubation attempt. As a result, for the last three years of her life she required a feeding tube.

The trial court charged the jury that the negligence of any of the defendants could be considered a cause of the injuries to the decedent if it found that the defendants' actions or omissions deprived her “of a substantial possibility of avoiding the consequences of…having a permanent feeding tube. The chance of avoiding the need for a [permanent] feeding tube in order to be substantial does not have to be more likely than not, it does not have to be more than 50 percent, but it has to be more than…slight.”²