In most medical malpractice lawsuits, plaintiffs have to prove “but-for” causation. What this means is but for the negligence of the medical professional, plaintiff would not have suffered an adverse outcome.
However, this burden of proof would leave those who already had terminal conditions or residual chances of survival or existing serious illnesses with little or no chance of recourse for their doctor’s medical negligence. Enter the “loss of chance” doctrine. It’s generally used in medical malpractice lawsuits involving a plaintiff who can’t prove “but for” causation because he or she was likely to die from the condition even before the doctor was negligent. In these cases, the doctor’s negligence usually involves the failure to diagnose or treat, which causes plaintiff a loss of chance to survive or have a more optimal outcome.
In a recent case before the Washington Supreme Court, justices were asked to review two questions in a “loss-of-chance” medical malpractice lawsuit:
- Should the court use a “but for” or “substantial factor” standard of causation in these types of claims;
- Should evidence relating to contributory negligence be excluded based on plaintiff’s failure to follow a physician’s orders.