Lord v. Lovett: The Loss of A Chance Doctrine In Medical Malpractice And Potentially Other Cases

By By Ralph F. Holmes

Lord v. Lovett¹ had the potential of becoming one of the Court's most significant medical negligence decisions. In a carefully reasoned opinion, the Court adopted the “loss of a chance” doctrine and ruled, "a plaintiff may recover for a loss of opportunity injury in medical malpractice cases when the defendant's alleged negligence aggravates the plaintiff's preexisting injury such that it deprives the plaintiff of a substantially better outcome." Id. at 236. The Court ruled that the loss of a chance of a better recovery, even if that chance is less than probable, is a compensable loss. The decision represented a dramatic departure from existing law and offered for the first time a remedy to a significant class of injured patients. The decision's impact, however, was short-lived as the Legislature amended RSA 506-E:2, the statute governing proof required in medical injury actions, to provide:

The requirements of this section are not satisfied by evidence of loss of opportunity for a substantially better outcome. However, this paragraph shall not bar claims based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition.

RSA 507-E:2,III (emphasis added). The question arises: does Lord have any viability left? My own view is that Lord signals that the Court may be receptive to two possible further changes to our tort law: allowance of loss of chance recoveries in non-medical injury cases and adoption of the "increased risk doctrine" to permit damages in medical injury cases for future risks of complications or other harm, if those risks are substantial, but less than probable.

The plaintiff in Lord had suffered a spinal cord injury in a car accident and was treated at the hospital by the defendants. She claimed that negligent failures by her medical providers to immobilize her properly and to administer steroid therapy denied her the opportunity of a better recovery. The Superior Court dismissed the suit because, according to an offer of proof by plaintiff, her expert would testify that the "defendants' negligence deprived her of the opportunity for a substantially better recovery… [but the expert] could not quantify the degree to which she was deprived of a better recovery by their negligence."² Thus, plaintiff could not prove that it was more probable than not that she would have had a better recovery but for the defendants' negligence.

On appeal, the Court reversed, adopting a variant of the "loss of a chance" doctrine. The Court reviewed three approaches to what it referred to as “loss of opportunity claims.”³ First, the Court discussed the “traditional tort approach,” which permits a plaintiff to recover only if she can prove to a degree of probability that a better recovery would have occurred but for the defendant’s negligence. The Superior Court in Lord followed this approach⁴, consistent with settled law. The Supreme Court commented on the injustice and the arbitrariness of this traditional “all-or-nothing rule,” which provides that a plaintiff is entitled to recovery for “all” injuries if she proves to a degree of probability that a better recovery was lost and “nothing” if she proves anything less.⁵

The second approach is a “relaxed proof variation[ ] of the traditional rule.”⁶ “Courts following this approach have stated that proof that the defendant negligently increased the risk of harm or destroyed a substantial possibility of achieving a more favorable outcome is enough to permit the plaintiff to present his case to the jury.”⁷ If this rule had been followed by the Superior Court in Lord, the plaintiff would have reached the jury, notwithstanding the absence of expert testimony that she probably would have enjoyed a better recovery but for the defendants’ negligence. While the proof requirement is relaxed in terms of whether the plaintiff’s case sustains a motion to dismiss, the requirement is not relaxed with respect to the charge given the jury. “[T]he relaxed proof approach … require[s] that the jury decide whether the defendant’s negligence was more likely than not a cause of the ultimate injury claimed.”⁸ As stated by our Court, “This approach represents the worst of both worlds [because it] continues the arbitrariness of the all-or-nothing rule, but by relaxing the proof requirements, it increases the likelihood that a plaintiff will be able to convince a jury to award full damages.’”⁹

In Lord, the Court adopted a third approach, which expands what constitutes a compensable injury. Unlike the traditional and the relaxed proof approaches, which permit a plaintiff to recover for the loss of a better recovery, this approach permits a plaintiff to recover for the lost chance of a better recovery. “Under the third approach, the lost opportunity for a better outcome is, itself, the injury for which the negligently injured person may recover.”¹⁰ "Under this approach, “[b]y defining the injury as the loss of chance…, the traditional rule of preponderance [of the evidence] is fully satisfied.”¹¹ Animating the Court’s decision is the recognition of the injustice and inadequacy of prior law, which denied recovery to someone such as the plaintiff in Lord who suffered a substantial injury but simply could not establish to a degree of probability that the better recovery would have been realized but for the defendant’s negligence.

Applicability To Non-Medical Cases

According to the Court, “[t]he loss of opportunity doctrine, in its many forms, is a medical malpractice form of recovery which allows a plaintiff, whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain a better degree of recovery.”¹² In negligence cases¹³, the loss of a chance doctrine has been adopted, perhaps exclusively, in medical malpractice actions,¹⁴ particularly those alleging a delay in cancer diagnosis.¹⁵ Professor King, who is “invariably cited in all discussions of the topic,”¹⁶ argues that application of the doctrine requires the defendant to have a “duty… to protect or preserve the victim’s prospects for some favorable outcome” and that the duty in most instances must be “based on a special relationship, undertaking, or other basis sufficient to support a preexisting duty to protect the victim’s likelihood of a more favorable outcome.”¹⁷ It is hard to imagine a defendant, other than a medical provider, who would satisfy this description.

Nonetheless, the logic and fairness of extension of the doctrine to claims against other defendants is compelling. Consider this variation of the facts in Lord: 1) the plaintiff was involved in a second automobile accident directly after the one referenced in the case; 2) she suffered non-spinal injuries in the second accident that delayed the diagnosis and treatment of her spinal injuries from the first accident; and 3) her medical expert at the trial of her claim against the second driver testified that the second accident deprived her of a chance of a substantially better outcome of her spinal injuries, but was unable to say to a degree of probability that the better recovery would have occurred but for the second accident. If the doctrine is conceived solely as a “medical malpractice form of recovery,” the plaintiff could not recover the value of her lost chance damages, even though the facts giving rise to the damages are highly analogous to the facts of Lord.

Although a healthcare provider, unlike another type of defendant undertakes a duty of care with respect to the underlying condition,¹⁸ this does not seem a persuasive basis for limiting the doctrine to healthcare defendants. In the second motorist scenario posited above, the motorist had the same level of duty, ordinary care, as a physician and took the plaintiff as he found her, that is, with spinal injuries needing prompt attention. If the second motorist by his negligence deprived the plaintiff of needed medical care resulting in lost chance damages, there does not appear to be a good reason for limitation of the doctrine, especially given that the Court adopted it to address the arbitrariness and injustice of the “all-or-nothing rule.” Why should victims of negligent driving, but not negligent medical care, suffer under this rule?

Applicability To Risks of Future Harm

In Lord, the plaintiff claimed “significant residual paralysis, weakness and sensitivity.”¹⁹ The opinion does not disclose whether the plaintiff claimed future unrealized damages, such as future complications or treatments. If she presented evidence that such damages were probable, then she could recover for these future losses under traditional tort law.²⁰ If, however, her evidence was that she had a substantial, but less than probable, risk of certain future losses, such as a 40% chance of progressive paralysis, could she recover for this risk? Although its reasoning suggests that such risks are recoverable, Lord does not reach the issue.

As understood by some courts, a less than probable risk of future harm is not within the scope of the loss of a chance doctrine, but rather the closely related “increased risk doctrine.”²¹ Discussing the relationship between these doctrines, one commentator notes:

Increased risk cases are related conceptually to loss of chance situations. In both circumstances, negligent defendants cause statistically measurable harm to plaintiffs. Courts which permit recovery for loss of chance and increased risk do not include the chance in their determination of the causation of the manifested physical injury, but instead recognize chances as protected interests. Thus, many courts have permitted recovery for increased risk using a rationale similar to that utilized by courts permitting recovery in loss of chance cases.²²

In U.S. v. Anderson,²³ the Delaware Supreme Court considered the relationship between the loss of a chance and the increased risk doctrines. Anderson presented the transferred question from the Delaware federal court whether a plaintiff who proved medical negligence in the diagnosis of his cancer could recover for the increased risk of recurrence of the disease if the risk was less than probable. After an extensive discussion of the case law, the court held that the increased risk of future harm was compensable.

Increased risk can be viewed, however, as merely one element of damages when negligence has caused harm. As the certified question is posed, defendant's negligence caused the cancer to spread. But for the missed diagnosis, accepted treatments would, almost to a certainty, have stopped the cancer. The missed diagnosis caused the cancer to spread, and Plaintiff suffered surgery and chemotherapy. One additional element of his damages is the increased risk of a recurrence. In view of the risk of recurrence, he certainly has suffered an injury which is significantly greater than that which he would have suffered in the absence of negligence. ²⁴

This reasoning is compelling and the only approach consistent with Lord. Future risks of recurrence or progression of disease are no less injuries than a lost chance of recovery. Unless the law is radically changed to suspend the statute of limitations to permit a plaintiff to bring a new claim every time a once-anticipated risk becomes manifest,²⁵ a refusal to allow future risk damages would be incongruous, illogical, and inconsistent with Lord's rejection of the all-or-nothing rule. As one commentator notes:

The underlying rationale for permitting recovery for increased risk and loss of chance is the recognition of chances as protected interests. Thus, a jurisdiction which recognizes a cause of action for either increased risk or loss of chance should necessarily recognize a cause of action for the other. Recognition of both causes of action would result in the most equitable distribution of resources among litigants.²⁶

Although the amendment of RSA 507-E:2 in 2003 to preclude lost chance damages in medical injury cases nullified the holding of Lord, the decision signals that the Court may be receptive to allowance of loss of chance recoveries in non-medical negligence cases and adoption of the "increased risk doctrine" to permit damages for future risks of complications or other harm if substantial, but less than probable. Lord might still fulfill its promise as one of the Court's most significant tort decisions.

¹ 146 N.H. 232 (2001).

² Id. at 234.

³ Id.

⁴ Id.

⁵ Id. at 234-36.

⁶ King, "'Reduction of Likelihood' Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine," 28 U. Mem. L. Rev. 492, 506-08 (1998) (cited extensively by the Court in Lord).

⁷ Id. at 507.

⁸ Id.

⁹ Lord, supra, note 1, at p. 236 (quoting King, supra note 7, at p. 508).

¹⁰ Id.

¹¹ Id. at p. 236 (quoting Perez v. Las Vegas Medical Center, 805 P.2d 589, 592 (Nev. 1991)).

¹² Id. at p. 234 (emphasis added).

¹³ The reasoning underlying the doctrine has been followed in several contract cases. See, e.g., Wachtel v. National Alfalfa Journal Co., 190 Iowa 1293, 176 N.W. 801 (1920) (contestant in a magazine contest offering valuable prizes allowed to recover damages for the value of the right to compete when the contest was discontinued in her district); Hall v. Nassau Consumers' Ice Co., 260 N.Y. 417, 183 N.E. 903 (1933) (plaintiff allowed to recover for the loss of a chance to win $5,000.00 in a lottery when the defendant failed to make any drawing whatsoever); Kansas City, M. & O. Ry. Co. v. Bell, 197 S.W. 322, 323 (Tex. Civ. App. 1917) (in action for damages due to the delay in a shipment of hogs for exhibition at a stock show, Texas court held that the plaintiff could recover for the loss of his chance in winning prize money, although damages could not be based upon the amount of the lost prize).

¹⁴ See, e.g., Hard v. Southwestern Bell Telephone Co., 1996 Ok. 4, 910 P.2d 1024 (1996) (refuse to extend doctrine to legal malpractice claim).

¹⁵ King, supra note 7, at p. 547.

¹⁶ Dobbs, The Law of Torts, 178, p. 436 (2001).

¹⁷ King, supra note 7, at p. 559.

¹⁸ See Restatement (Second) of Torts 323(a) (1963).

¹⁹ Lord, supra note 1, at pp. 233-34.

²⁰ Jolicoeur v. Conrad, 106 N.H. 496, 498 (1965) ("It is well settled in this jurisdiction, as the plaintiff recognizes, that there can be no recovery for future damages unless there is evidence from which it can be found to be more probable than not that they will occur.").

²¹ See, e.g., U.S. v. Anderson, 669 A.2d 73, 75-76 (Del. Supr. 1995); King, supra note 7, at p. 550, n. 64 (citing cases including Anderson that "have applied the loss-of-a-chance doctrine in the future consequences situation").

²² Feldman, "Chances As Protected Interests: Recovery for the Loss of a Chance and Increased Risk," 17 Baltimore L. Rev. 139, 151 (1987) (citing Martin v. City of New Orleans, 678 F.2d 1321 (5th Cir. 1982) (applying Louisiana law) (plaintiff incurred a risk of future medical complications due to bullet lodged in his neck), cert. denied, 459 U.S. 1203 (1983); Sterling v. Velsicol Chemical Corp., 647 F. Supp. 303 (W.D. Tenn. 1986) (recovery allowed for increased susceptibility to liver and kidney cancer); Starlings v. Ski Roundtop Corp., 493 F. Supp. 507 (M.D. Pa. 1980) (recovery allowed for increased risk of developing arthritis); McCall v. United States, 206 F. Supp. 421 (E.D. Va. 1962) (recovery allowed for an increased chance of becoming epileptic); Linsay v. Appleby, 91 Ill. App. 3d 705, 414 N.E.2d 885 (1980) (recovery allowed for risk of injury related to plaintiff's predisposition to seizures); Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984) (recovery allowed for increased susceptibility to meningitis); Charlton Bros. Transp. Co. v. Garrettson, 188 Md. 85, 51 A.2d 642 (1947) (recovery allowed for increase hazard of a recurring hernia); Feist v. Sears, Roebuck & Co., 267 Or. 402, 517 P.2d 675 (1973) (recovery allowed for increased susceptibility to meningitis); Schwegel v. Goldberg, 209 Pa. Super. 280, 228 A.2d 405 (1967) (recovery allowed for increased chance of developing seizures)) (emphasis added).

²³ 669 A.2d 73 (Del. Supr. 1995).

²⁴ Id. at p. 78 (emphasis added).

²⁵ Professor King proposes the unorthodox and highly impractical idea that plaintiffs be allowed to split their causes of action and assert in the future beyond the expiration of the statue of limitations claims for increased risk damages after they materialize. King, supra, note 7, at p. 496.

²⁶ Feldman, supra note 23, at p. 154 (emphasis added).