Recent appellate division decisions have made it abundantly clear that the medical malpractice doctrine of lost chance of a better outcome is an accepted basis for recovery of substantial damages. In cases involving delayed diagnosis or omission failures qualified expert testimony based on the evidence addressing each of the various departures as a proximate cause of or substantial factor in causing the lost chance or increased injury is part and parcel of plaintiff's prima facie case. Examining the case law on this doctrine will help counsel craft the requisite medical expert opinion questions and present appropriate jury charges as well as prepare for jury voir dire.

Recently, the Second Department upheld a multimillion-dollar verdict based upon delayed diagnosis of ovarian cancer. Bacchus-Sirju v. Hollis Women's Ctr., 196 A.D.3d 670 (2d Dep't 2021). The court upheld the jury's verdict finding plaintiff's expert's testimony sufficient and supported by the evidence that the alleged departures in failing to inform the decedent that her sonogram showed fluid in the cul-de-sac, failure to obtain a blood CEA and refer to a gynecologic oncologist more likely than not were a substantial factor in causing a delayed diagnosis of ovarian cancer and diminishing her chances for a better outcome. Specifically, in discussing proximate cause, the court held: "In order to establish proximate causation, a plaintiff must present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury (see Berger v. Shen, 185 A.D.3d at 541; Gaspard v. Aronoff, 153 A.D.3d at 796). A plaintiff's evidence of proximate causation 'may be found legally sufficient … as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased the injury.'"

Compare to Berger v. Shen, 185 A.D.3d 539 (2d Dep't 2020), in which the Second Department found the expert's trial testimony to be completely deficient and speculative on proximate cause and granted defendant judgement notwithstanding the jury's verdict of over $1 million dollars. Although the jury correctly found the defendant departed from accepted practice in failing to advise plaintiff of the nasal patch placed during endoscopic sinus surgery and failure to provide proper postoperative care the evidence showed that the nasal injuries were caused during the surgery. Therefore, the departures were not proven to be a substantial factor in causing the injuries. However, the court in addressing causation held: "Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury (Gaspard v. Aronoff, 153 A.D.3d 795, 796, 61 N.Y.S.3d 240). '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 plaintiff's chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased [the] injury' (Lopes v. Lenox Hill Hosp., 172 A.D.3d 699, 702, 99 N.Y.S.3d 384, quoting Gaspard v. Aronoff, 153 A.D.3d at 796)."