Loss Of Chance Theory

upon examination, however, also states that even with medical intervention at that time; it is not clear whether the decedent would have survived. Another expert witness testified, a Dr. DeJong, chairman of the Department of Neurology at University of Michigan medical school, stating that contemporary medical standards would require that vital signs be checked and the vomiting should have prompted for a more thorough examination. He further testified that without surgical intervention that there is about 100% mortality rate and that with surgery that mortality rate would maybe be reduced to 50% instead. The court affirmed the judgment given during the Court of Appeals. Even while the hospital failed to take the vital signs and failed to

The plaintiff argues that loss-of-chance theory is an issue for the court because the defendants had decreased the decedent’s chance of survival from 28% to zero. With loss of chance, the burden of proof is not as great as probability of survival. Instead of being required to prove with reasonable probability that defendant’s tortuous conduct caused the injury or death, the plaintiff, who was already suffering from some disease or disorder when the malpractice occurred, can recover the lost chance, even though survival or recovery is less than probable, or in this case at 28%. The loss-chance theory can be used when the physician is blatantly at fault, then the requirement of proving causation is relaxed. The loss-chance theory has roots in the case Hicks v. United States where the decedent died from an obstruction of the intestine after being misdiagnosed as suffering from

Expert testimony established that the patient would have survived given proper treatment. Furthermore, the court stated that when the defendant’s negligent action or inaction has terminated a person’s chance of survival, the defendant cannot then raise conjectures of what may have or may not have happened. As such, the court repealed the decision in Cooper v. Sisters of Charity, because of it’s all-or-nothing approach. Furthermore, the State of Ohio has decided to follow the rest of the county with the less harsh standard of the loss-of-chance theory. The medical advances are meaningless unless early detection is practiced diligently by those in health care. As such, health care providers are not to be protected from liability where there is expert testimony showing that he or she reduced the patient’s chances of survival. As such, the courts reversed the judgment of the court of appeals and remand the matter to the trial