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1Lchica

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torts questions
« on: December 13, 2007, 06:58:50 AM »
OK, I need help understanding loss of chance.. here's my take on it.. usually, if a persons initial chance is more than 50 percent and they get sick or die, they can recover 100 percent because it's just a  normal medical malpractice claim. On the other hand, if it was under 50 percent, and the doctor does something negligently and takes the chance down from, say 30 percent to 10 percent, and they get sick or die frm whatever their illness was, they can recover 20 percent of their damages. Does this sound right?

Also, anyone know where I can get a checklist or osmething for when I'm taking the test? I'm completely terrified :(

CItyGirl35

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Re: torts questions
« Reply #1 on: December 13, 2007, 12:28:29 PM »
OK, I'm going to try to tackle this, please forgive me if I am wrong!  I think you are pretty much correct... but I still haven't had my torts final yet either, so those who know their stuff, pls correct me.   

If the doctor does something negligent, and that negligence increases the risk of harm within reasonable degree of medical probability, then the measure of damages is the value of the lost chance of recovery.  Recovery turns on whether the negligence of the doctor more than doubled the patient's chances of suffering the harm.  So let's say the patient dies, and his loss of life was worth a million, and the doctor's negligence contributed 40% to it, the damages are 400,000.

I never thought of it in terms of the 50% or more chance if they get sick & die --> they get 100% bc that's just malpractice.  Is that true?  So what if they had a disease that is 40% responsible for their death and 60% responsible for the doctor, then loss of chance doesn't apply?

OK, I need help understanding loss of chance.. here's my take on it.. usually, if a persons initial chance is more than 50 percent and they get sick or die, they can recover 100 percent because it's just a  normal medical malpractice claim. On the other hand, if it was under 50 percent, and the doctor does something negligently and takes the chance down from, say 30 percent to 10 percent, and they get sick or die frm whatever their illness was, they can recover 20 percent of their damages. Does this sound right?

Also, anyone know where I can get a checklist or osmething for when I'm taking the test? I'm completely terrified :(

ShakedownStreet

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Re: torts questions
« Reply #2 on: December 14, 2007, 02:03:44 AM »
different jurisdictions tackle the lost chance for recovery problem in different ways. Here is a general description of the development of lost chance of recovery.

Under the traditional rule, a patient could recover full damages if a doctor deprived the patient of a 50% or more chance of recovery. 
     This rule was rejected, because it allows doctors to be up to 49% negligent for free

Under a modification of the traditional rule, a patient could recover full damages if a doctor deprived the patient of any chance of recovery.
     This rule was rejected because it allowed a patient to recover full damages when a doctor deprived the patient of a mere 1% chance of recovery

Lost chance for a better outcome:  allows a patient to recover partial damages when a doctor deprived the patient of any % chance for recovery.


This is how my torts professor taught this topic...so it could be different at other schools.  I hope everyone is fairing well on finals...Good luck to those still studying!!!

pop-punk

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Re: torts questions
« Reply #3 on: December 15, 2007, 12:38:16 AM »
okay, so first let's assume the doctor was negligent. (i.e. just because you have a 75% chance of living and you die, doesn't necessitate medical malpractice.) But assuming malpractice...

The traditional doctrine was that if you were "more probably than not" going to live, and the doctor's malpractice was "more likely than not" the cause of your death, then the doctor was negligent for the entire damages.

However, modern medical knowledge is so good that we can reasonably predict chances in ways that the traditional law couldn't anticipate. Therefore, "more probably than not" = 51%.

So, under the traditional doctrine, if the doctor takes you from say 51% survival to 49% survival, and then you die, the doctor is liable for all of it. This seems grossly unfair to doctors right? Well cry me a river, they have insurance.
But the real problem is that this rule was totally unfair to patients. Under the traditional doctrine, if you only had a 49% chance of life to begin with, you were screwed. The doctor could not, no matter how negligently, be sued for malpractice, because you were never "more probably than not" going to live. So Doc could negligently take you from 49% to 1% and wash his hands of the whole matter.

So then loss of chance, which generally only applies when there was less than 50% chance to begin with, came into existence. The key is that it's a reform to protect the patients, not the doctors. So the grossly unfair "51% to 49% and you're liable for it all" doctrine still exists in a majority of the states.

So, 40% down to 30%, and the patient dies = doc is liable for 10%.
55% down to 45%, and the patient dies = the doc is liable for 100%.

Yep. True story.