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Article
Note, Identifying and Valuing the Injury In Lost Chance Cases
Michigan Law Review (1998)
  • Todd S Aagaard, Villanova University School of Law
Abstract
This Note argues that courts commonly fail to identify precisely the injury in lost chance cases and accordingly have failed to measure damages in a way that accurately compensates the plaintiff’s injuries. Lost chance cases are medical malpractice cases in which the injured victim has a preexisting medical condition from which she is unlikely to recover, but the defendant’s negligence has reduced further the victim’s likelihood of recovering. A majority of courts that allow recovery in lost chance cases have adopted a proportional valuation method that values the plaintiff’s damages by multiplying the percentage reduction in the chance of recovery by the total value of the losses the plaintiff suffered. The Note shows that the proportional valuation method improperly commingles the losses suffered by the plaintiff as a result of the lost chance and the losses suffered due to the preexisting condition. The Note advocates an alternative method of damages determination that clearly differentiates between the two categories of loss and gives the jury discretion to assess damages for the lost chance injury based on its evaluation of all the relevant evidence. This Note concludes that the loss of chance doctrine can achieve legitimacy as a valid extension--rather than an ill-fitting alteration--of traditional principles of tort law only by defining in precise terms the losses that constitute the tort injury in lost chance cases and by allowing juries the discretion to assess the value of those losses without undue constraints.
Publication Date
1998
Citation Information
Todd S Aagaard. "Note, Identifying and Valuing the Injury In Lost Chance Cases" Michigan Law Review (1998)
Available at: http://works.bepress.com/todd_aagaard/3/