A physician’s failure to properly and promptly diagnose a condition may result in significant loss to a patient. Medical malpractice attorney Brien Roche reports that under the traditional failure to diagnose analysis in a medical malpractice case a patient must have a 50% or better chance of survival or recovery in order to prove causation based upon the physician’s negligent failure to diagnose. Under the so-called loss-of-chance doctrine if the patient in fact had less than an even chance of survival or recovery then the physician may be liable for the reduction in that chance of survival or recovery in the medical malpractice context. This overall theory is premised upon a legal treatise known as the Restatement of Torts which indicates that if the physician’s conduct or failure to act increases the risk of harm then the physician may be liable to the extent that such increase exists.
Not all jurisdictions recognize the loss-of-chance doctrine but it is a legal doctrine with substantial authority behind it and one that should be pursued in the appropriate case.
The evidence necessary to prove causation is frequently difficult to elicit since many physicians are reluctant to express opinions on issues that some might deem to be speculative or at least not within the normal province of a mere mortal physician.