The initial installment of this column examined the history of recovery for loss of chance in New York. Four years ago, we reviewed the manner in which recovery for loss of chance has been applied in cases involving delays in diagnosing cancer. We now review such recovery in cases that do not involve delays in diagnosing cancer.

Before turning to the substance of those cases, it is helpful to set forth the legal principles applicable to recovery for a loss of chance. The Fourth Department's decision in Clune v. Moore, 142 A.D.3d 1330 (4th Dept. 2016), provides a concise and comprehensive articulation of those principles, stating:

Where, as here, the plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby “diminished [the patient's] chance of a better outcome,” in this case, survival. In that instance, the plaintiff must present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant's deviation from the standard of care. However, “[a] plaintiff's evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decreased the [patient's] chance of a better outcome … , 'as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the [patient's] chance of a better outcome'.” (Extensive citations have been omitted in light of space constraints.)