The “lost chance” theory of recovery is steadily gaining ground in medical malpractice cases involving reduced life expectancy or increased risk of future harm (and in many other areas beside medical malpractice — see Tort Recovery for Loss of Chance, Fisher, 36 Wake Forest L. Rev. 605, Fall 2001).
The 'Lost Chance' Theory of Recovery
Under the "lost chance" theory, a claimant's recovery is limited by the odds or likelihood that the event would have or will occur -- a departure from the "all-or-nothing" rule of recovery, whereby a claimant receives the full measure of damages if, but only if, the injury is "reasonably certain." If, for example, it is shown that there is a 20% chance that the plaintiff will suffer future harm, the plaintiff will be awarded 20% of what he or she would have been awarded had he or she sustained the injury.
By
Jerome M. Staller, PhdThis premium content is locked for LawJournalNewsletters subscribers only
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