When a doctor or other healthcare professional fails to provide the care they should, it usually results in medical malpractice for which victims can recover compensation in a lawsuit. But what can victims do if their doctor’s negligence causes them to lose a chance at recovering from their condition?
In such cases, malpractice victims can file a lawsuit under the “lost chance” doctrine. Under this legal theory, malpractice victims can recover damages for additional medical costs and non-economic damages if they show that their healthcare provider’s negligence cost them an opportunity to get better. Perhaps your doctor had negative test results they failed to share or never scheduled follow-up treatment. Our attorneys can get evidence from your current and old providers to show that your chances of recovering would have been significantly higher if not for your doctor’s failure.
For a free review of your claim with our Arkansas medical malpractice attorneys in Arkansas, contact us today at (479) 316-0438.
The “Lost Chance” Doctrine and Medical Malpractice Lawsuits
Medical malpractice generally involves cases where a healthcare professional’s negligence results in harm to a patient. However, even if a doctor did not directly cause you injury but only diminished your chances of a positive outcome, you still have the right to seek compensation in a lawsuit. The “lost chance” doctrine shifts the focus from just physical injuries to the opportunities lost for a patient to recover or survive, all as a result of a medical professional’s negligence.
The lost chance doctrine is a legal principle applied almost exclusively in medical malpractice lawsuits. It applies when a doctor’s negligence or malpractice deprives patients of a significant opportunity for a better outcome or longer life, thus increasing their pain and suffering. For instance, consider a patient initially diagnosed with Stage I cancer who might have had an 80% chance of recovery. If a doctor fails to diagnose their cancer properly, and it progresses to Stage II, the patient’s chances of recovery might drop to 50%, resulting in additional damages. Under the lost chance doctrine, the doctor could be held liable for 30% of the lost chance of recovery, along with the increased pain and suffering the victim experiences.
However, the lost chance rule has limitations depending on the state where you file your lawsuit. While every state has some version of the doctrine, some put a bar of 50% or greater loss of chance before victims can recover compensation.
Other jurisdictions restrict the use of lost chance arguments to personal injury lawsuits involving living victims rather than wrongful death claims where it is argued that the loss of opportunity caused the victim’s death. For example, the Arkansas Supreme Court specifically rejected the premise that the lost chance doctrine applied to wrongful death claims in Holt v. Dr. Taylor Dan Wagner. However, many other states follow Washington’s lead, allowing plaintiffs to recover for disability or death due to a lost chance.
How Do Victims Commonly Lose a Chance of Recovery?
Implicit in the lost chance concept is that there was a period of time when your healthcare providers could have helped but did not. This lost chance might occur while receiving ongoing care from a trusted physician or while waiting for emergency care at the hospital. The crucial issue is not the time in which the loss occurred but that an opportunity was missed that would have prevented further damages.
One of the most common reasons for a reduced chance of recovery is misdiagnosis. If a healthcare provider fails to run the proper tests, misinterprets symptoms, or ignores signs of a condition, their negligence can cause the problem to worsen. It might be months or years before the victim discovers the error, at which point, their ability to recover fully might be significantly diminished.
Another common reason for missed opportunities is when a patient is in the emergency room triage area or admitted to the hospital but essentially forgotten or overlooked while in their room. The patient might be experiencing an urgent medical condition, yet they are not receiving the urgent treatment they need. Eventually, the medical staff will tend to them and provide the necessary care. However, by that point, the patient might have suffered serious, lasting complications simply because they were not attended to quickly enough.
Proving Loss of Chance in a Medical Malpractice Claim
Proving loss of chance might be one of the most challenging tasks in personal injury law. You must show that the negligent healthcare provider not only owed you a duty of care but that they directly and proximately caused your lost chance by breaching that duty. In most cases, we must offer evidence that they failed to provide care, and your chances of recovery would have been possible but for your doctor’s negligence.
Establishing a healthcare provider’s duty to you is arguably the least challenging part since the defendant was likely treating you for some time to cause the missed chance. The challenge is proving that they breached their duty of care to you. We must show that the defendant failed to utilize the same degree of training and skill that other professionals in good standing engaging in the same practice type in that particular location.
If they did or failed to do something another doctor would not have, they likely breached their duty. For instance, perhaps your doctor failed to provide any follow-up care after a negative report. In other cases, healthcare providers run the right test but do not communicate their findings with the patient until it is too late.
We must then show that their negligence caused your damages and lost chance at recovery. We can prove this by showing how your condition has worsened. We can also submit current medical records showing other complications associated with lack of treatment.
Contact Our Medical Malpractice Attorneys in Arkansas Today to Get Compensated for Your Lost Chances of Recovering
Call us at (479) 316-0438 to receive your free case assessment from our Bentonville, AR medical malpractice lawyers today.