New York's Flaws in Measuring Damages for 'Loss of Chance'
In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss cases from other jurisdictions that highlight the flaws in New York's current approach of allowing recovery for the loss of a "substantial possibility" of a cure or better outcome, arguing that if recovery in these cases is to be allowed, the proper compensation to the plaintiff should be the dollar amount representing the limited opportunity that was lost.
September 15, 2015 at 03:24 PM
13 minute read
The “loss of chance” theory of causation has been described as granting “'recovery to patients for deprivation of the opportunity of more beneficial treatment and the resulting gain in life expectancy or comfort, although the evidence fails to establish a reasonable probability that without the defendant's negligence a cure was achievable.'”1 As indicated in our previous article (July 15, 2015), while the Court of Appeals has yet to rule on whether New York recognizes loss of chance as a distinct injury, it is clear that the Appellate Divisions have recognized it as a theory of causation in medical malpractice actions.
The First, Third and Fourth Departments require proof that the alleged malpractice deprived the plaintiff of a “substantial possibility” of a better outcome, while the Second Department phrases the inquiry in terms of whether there was “some diminution” in the opportunity for survival or cure.
The problem is that New York allows recovery for the same measure of damages as if the plaintiff had established “but for” proximate causation, i.e., proving that the defendant was 51 percent or more at fault for the injury itself. This results in a windfall recovery to the plaintiff.
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