Private Law Theory

ABSTRACT
The loss-of-chance doctrine paradigmatically applies to wrongful death cases in which a physician omits malpractice and seeks to avoid liability on the causal ground that the patient probably would have died anyway from the pre-existing medical condition, even if it had been treated properly. By rejecting this argument and permitting recovery in these cases, courts purportedly have either relaxed the plaintiff’s ordinary burden of proving causation or otherwise redefined the compensable harm as the patient’s lost chance of survival rather than the wrongful death. Either modification of ordinary tort principles could have profound effects that extend well beyond the context of medical malpractice.

The loss-of-chance doctrine has divided courts across the country, with about half of the states rejecting, deferring, or not yet addressing it. This halting development suggests that it might be useful to consider whether the doctrine can be justified by ‘old categories’ of tort law based on established principles …

Mark A Geistfeld, Duty-Preserving Tort Rules as an ‘Old Category’ for Justifying the Loss-of-Chance Doctrine in Medical Malpractice Cases, 73 DePaul Law Review 427 (2024).