"Reduction of Likelihood" Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine

I. INTRODUCTION More than fifteen years have passed since the publication of the predecessor to this Article, in which this author advocated a different approach to the loss-of-a-chance doctrine in personal injury torts cases.' The thesis of that article was, simply put, that when a defendant tortiously destroys or reduces a victim's prospects for achieving a more favorable outcome, the plaintiff should be compensated for that lost prospect.2 Damages should be based on the extent to which the defendant's tortious conduct reduced the plaintiff's likelihood of receiving a better outcome.3 The victim's lost prospects should be compensable irrespective of whether the tortiously reduced likelihood was better than even.4 In other words, a plaintiffs right to damages for the loss of a chance should not be restricted to situations in which the plaintiff proves that it was more likely than not that he would have received a better outcome in the absence of the tortious conduct. For purposes of the present Article,5 the loss-of-a-chance doctrine6 will refer to a rule wherein a victim will be entitled to damages for the tortious reduction of the likelihood of avoiding the adverse consequences in question even if that likelihood was not better than even. The most common paradigm for the loss-of-a-chance doctrine involves a victim suffering from a preexisting condition the adverse consequences of which a defendant health care provider negligently fails to prevent.' Under the loss-of-achance doctrine, the plaintiff would be compensated for the extent to which the defendant's negligence reduced the victim's likelihood of achieving a better outcome, notwithstanding the fact that the likelihood may have been reduced by less than fifty-one percent. Part II of this Article briefly discusses the development of the loss-of-a-chance theory. The purpose in revisiting this topic is neither to survey the current state of the law in any specific jurisdiction or nationally nor to review the many cases and arguments for or against the loss-of-a-chance doctrine.8 Although this Article discusses the British House of Lords's decision in Hotson v. East Berkshire Area Health Authority in some detail, the purpose of this discussion is to facilitate analysis of one conceptual path. This Article does not examine postHotson developments in English law nor English law generally regarding the loss-of-a-chance doctrine. Once the reader is provided with an overview and analytical framework, the Article considers a reformulation of the doctrine. The loss-of-a-chance doctrine has garnered substantial support over the past two decades, particularly in medical malpractice cases.la Nevertheless, a nagging perturbation has emerged that threatens to subvert, or at least unnecessarily obfuscate, the doctrine. It is based on some courts' insistence, to varying degrees, on proof of the existence of a literal chance as a precondition to the application of the loss-of-a-chance doctrine." In order to clarify and rationalize the conceptual line separating causation and valuation,'2 this Article recommends focusing on the tortious reduction of the victim's likelihood of achieving a more favorable outcome.'3 Specifically, this Article seeks to purge the conceptual pitfall that is based on a one-dimensional causation focus on whether the victim had a literal chance. As will be explained, a literal-chance requirement is questionable for several reasons. First, a truly literal chance in the sense of a condition whose effects are totally unpredictable may be nonexistent. Rather, what has typically been referred to in chance parlance would be better conceived as reflecting the reality of our limited perception and fund of knowledge. Second, and more importantly, whether there is or is not a literal chance should not be the deciding factor in determining whether a claim is resolved by causation or valuation (loss-of-achance) principles. Rather, application of the loss-of-a-chance doctrine should depend on the four criteria discussed below. …