Loss of Chance

The doctor fails to diagnose your cancer. The doctor didn’t cause your cancer. But what he caused was for you to lose the chance of getting better.

A Washington decision called Herskovitz v. Group Health Cooperative of Puget Sound is the leading case in this area of professional liability.

In Herskovitz, plaintiff had visited the defendant’s hospital with complaints of chest pain and coughing in early 1974. In July 1975, the patient consulted a private physician who diagnosed lung cancer. The cancerous lung was surgically removed; however, the cancer metastasized and the patient died in 1977. Assuming the negligence of the defendant in failing to diagnose the cancer in 1974, the court was faced with a dilemma.

Had the cancer been diagnosed in 1974, the patient’s chances of surviving a “Stage One” lung cancer were thirty-nine percent. By the time the cancer was actually diagnosed it had become a “Stage Two” cancer, however, and the statistics for survival had dropped to twenty-five percent. Thus, the patient suffered a reduction in his chance of survival as a result of the negligent diagnosis. The harm is the loss of the chance of recovery. Damages are expressed by multiplying the value of a “lost life or limb” (as the Courts express the issue) by the chance of recovery lost.

Loss of chance cases frequently involve cancer but can also arise from any variety of other conditions.