Given the established body of case law that exists, it is hard to believe that the New York Pattern Jury instructions (PJI) does not provide for a specific charge to the jury in lost chance cases. See Alan Clark, "Lost Chance as Substantial Factor in Causing Injury," NYLJ (Part 1: Oct. 14, 2020 and Part 2: Oct. 21, 2020. Although the 2020 commentary to the medical malpractice charge PJI 2:150 does discuss at length loss of chance (see pages 81-85) the proximate cause charge PJI 2:70 does not. As experienced counsel know the proximate cause charge is brief and amazingly the commentary does not address this subject matter.

The proximate cause charge set forth in PJI 2:70 simply recites: "An act or omission is regarded as a cause of the injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury." However, the charge does add that in cases of comparative negligence or concurrent causes that to be substantial it cannot be slight or trivial. "You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it." PJI 2:70.