Four years ago, we published a two-part column addressing causation in cases stemming from delays in diagnosing cancer.1 That column, particularly the first installment, focused on the concept of loss of chance, which is the essence of the harm caused by a delay in diagnosing cancer. We noted the wide variations in the nature and impact of lost chances, depending on the type of cancer and length of the delay. In many cases, a timely diagnosis would have afforded the patient an opportunity for treatment that offered a high likelihood of cure and a normal life-expectancy. In other cases, the delay deprived the patient of a chance of cure that is less certain. Even where a cure would not have been available, a delay in diagnosis may deprive the patient of treatment that would have prolonged his or her life by years, months, or even weeks. Apart from cure and prolongation of life, a delay may necessitate more painful, debilitating or disfiguring treatment than would have been available with an earlier diagnosis. These are all injuries, and they are compensable.
Loss of chance is a basic concept involving causation of injury in medical malpractice actions. It comes into play whenever there has been a loss or diminution of an opportunity for a better outcome.2 And, its application extends far beyond cancer cases. Indeed, it applies, at least conceptually, whenever an injury, illness or condition that was not caused by the defendant is permitted to progress and cause injury to the patient as a result of the defendant’s negligence.
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