Reducing Monetary Recovery in “Lost Chance Of [Medical] Recovery” Cases -

In medical malpractice cases involving solely “iatrogenic” loss (e.g., harm of or relating to medical treatment), plaintiff bears the burden of proof in establishing that medical negligence was more probably true than not true the cause of his or her ultimate injury. When an iatrogenic cause combines with an innocent cause, such as an underlying medical condition of the patient, plaintiffs often pursue a cause of action under the “loss of chance” doctrine and its arguably relaxed burden of proof. That doctrine permits recovery when a medical expert opines to a “reasonable [degree of medical] certainty” that the physician’s negligence caused a lost chance of recovery. Holton v. Memorial Hospital, 679 N.E.2d 1202, 1211-13 (Ill.Sup.Ct. 1997).

It is nearly axiomatic that one could more easily prove that a chance of harm, rather than an actual harm, resulted from medical negligence. Should “loss of chance” plaintiffs be entitled to recover 100% of their damages absent proof of actual harm? As some commentators have argued, fair application of the “loss of chance” doctrine requires treating the lost chance of recovery itself as the compensable harm, rather than the ultimate injury sustained by the patient (the so-called “separate injury approach,” which has been adopted in Iowa, Kansas, Michigan, Missouri, Nevada, and Washington). J. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1365 (1981). In this way, the medical tortfeasor is held accountable only for damages flowing from iatrogenic causes, rather than compensating patients for innocent causes which the medical tortfeasor played no role in causing, such as the patient’s underlying medical condition. Id.