A man comes to you with the following case: a year ago, he presented to the emergency department with coughing and shortness of breath. To evaluate for respiratory illness (e.g., pneumonia, pulmonary embolism, etc.), the doctor ordered a CT scan of the chest. The radiologist determined, correctly, that there was no infection or embolism. However, the radiologist failed to report a small, abnormal lesion on the lung.

A year later, this man was diagnosed with lung cancer.  His oncologist told him that his disease was terminal, with a five-year survival rate of less than one percent.  The oncologist also explained that had the radiologist reported the lesion a year earlier, his five-year survival rate would have been twenty-five percent.  In other words, the radiologist’s failure to report the lesion cost your potential client a one in four chance of survival.

Does this man have a cognizable malpractice case for his “loss of a chance” at survival?

Although it remains unclear under Maine law whether the courts would recognize this claim, other jurisdictions have recognized “loss of a chance” cases as viable causes of action. And under the right circumstances, we believe that Maine courts should do so as well.

The Current Status of Maine Law on “Loss of a Chance”

Most “loss of a chance” cases involve delayed diagnosis of cancer, similar to the example above.  For many types of cancer, there is robust data on how progression of cancer from one stage to the next effects a patient’s statistical likelihood of survival.  For aggressive cancers, a patient may never enjoy a greater than fifty percent chance of survival, even if the cancer is diagnosed early.  However, a delay in diagnosing the cancer may still have a significant impact on the patient’s statistical likelihood of survival.  

The Maine Law Court has yet to clearly adopt the “loss of a chance” theory of recovery. But the Court hasn’t rejected it either. The question of whether recovery for “loss of a chance” is permitted in Maine was before the Court in Estate of Nickerson v. Carter, 2014 ME 19, ¶ 2, but the Court chose not to address it. 

By contrast, in Samaan v. St. Joseph Hospital, 670 F.3d 21 (1st Cir. 2012), the United States Court of Appeals for the First Circuit concluded that a “loss of a chance” was not cognizable under Maine law. There, the plaintiff, who had presented to St. Joseph Hospital after suffering a stroke, sued the hospital for failing to administer a drug shown to improve chances of recovery from a stroke. Because the plaintiff could not prove that the drug made it more likely than not that he would have recovered from the stroke, he instead argued that he need only prove that the failure to administer the medication cost him a better chance of recovery.

The First Circuit rejected the plaintiff’s argument in that case.   Purporting to interpret the Maine Health Security Act, the First Circuit held that the “formulation of the causation standard [in the MHSA] is clear and unambiguous. It admits of only one interpretation: the phrase ‘reasonable medical probability’ demands that the injury be a probable or likely result of the negligent act or omission.”  Id. at 30. The Court continued: “It is, therefore, beyond serious question that the standard of causation articulated in the MHSA is incompatible with the lost chance doctrine.” Id.

The First Circuit’s Decision in Samaan is Wrongly Decided

The First Circuit’s decision in Samaan is not binding on Maine’s State Courts.  Moreover, its reasoning misconstrues the “loss of a chance” doctrine. Of course, it is “clear and unambiguous” in every jurisdiction, including those which recognize the “loss of a chance” theory, that medical malpractice plaintiffs are required to prove their claims by a preponderance of the evidence. As these courts have noted, “[p]roperly applied, the loss of chance doctrine does not alter or eliminate the requirement of proximate causation. Rather, a plaintiff must still prove by a preponderance of evidence, or more likely than not, that the defendant’s actions reduced her chance of a better outcome.” Jorgenson v. Vener, 616 N.W.2d 366, 371 (S.D.2000). In other words, “loss of chance is better understood as a description of the injury than as . . .  a surrogate for the causation element of a negligence claim.” Alexander v. Scheid, 726 N.E.2d 272, 279 (Ind. 2000). 

Describing “loss of a chance” as a category of injury rather than a relaxed standard of causation makes more sense for two reasons.  First, even if the plaintiff can prove that it is “more likely than not” that he would have lived absent the negligent, this is merely a statistical probability.  The plaintiff may have died even absent the negligence; and the plaintiff may live even with the negligence.  Thus, in this sense, the law is already equating the harm to the statistical likelihood, not the reality of the individual’s actual outcome.  Second, whatever impact the negligence has on a plaintiff’s chances of survival—whether it reduces the plaintiff’s chances from 90 percent to 1 percent; or merely from 25 percent to 1 percent—the standard for proving causation remains the same: the plaintiff must prove the “loss of a chance” by a preponderance of the evidence.

Because “loss of a chance” is a category of injury rather than a relaxed standard of causation, the MHSA is silent about whether the doctrine is permitted in medical malpractice cases in Maine. Accordingly, it remains up to Maine State Courts to determine whether “loss of a chance” is a cognizable injury under Maine law.

Damages for “Loss of a Chance”

How should damages be calculated if a plaintiff proves that the defendant’s negligence cost him or her a “loss of a chance?”

Some jurisdictions, such a Massachusetts, follow a “proportional damages” model, under which “loss of chance damages are measured as the percentage probability by which the defendant’s tortious conduct diminished the likelihood of achieving some more favorable outcome.” Matsuyama v. Birnbaum, 452 Mass. 1, 26 (2008).  

In other jurisdictions, juries have more flexibility to assign a value to the lost chance without applying rigid percentages.  As one court noted, this is nothing new as “juries are routinely entrusted with the task of awarding damages for injuries that are not readily calculable.” Alexander v Scheid, M.D., 726 N.E.2d 272, 283 (Ind. 2000).

Conclusion

As medical science and empirical data evolve, harm from medical injury can be better quantified using broad statistical studies of patient outcomes.  Common sense dictates that where medical negligence costs an individual a clear and quantifiable loss of a chance for a cure or recovery, this is the type of harm that should be cognizable through our tort system.  The plaintiff, or course, retains the burden of proving, by a preponderance of the evidence, that the negligence caused such harm.  However, where such quantifiable harm occurs and plaintiff proves it, Maine courts should follow the other jurisdictions that recognize recovery for “loss of a chance.”