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.
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