In a key victory for plaintiffs and their lawyers, the Massachusetts Supreme Court has for the first time adopted the “loss of a chance” doctrine, which allows plaintiffs to recover money without having to show that it was more likely than not that the charged medical negligence made the difference in their recovery or survival. (Denise Lavoie, “Doctor held liable for a ‘loss of chance'”, AP/Boston Globe, Jul. 24). When Medical Economics surveyed the field two years ago, they found that about half the states had accepted the more liberal doctrine, which runs counter to the Anglo-American “more likely than not” prerequisite for establishing causation. More on the inexact and contradictory standards used in such cases here.
Readers of this site will not be the least surprised to learn that American courts have shown little or no interest in extending the “loss of a chance” doctrine for the benefit of plaintiffs in legal malpractice cases filed against attorneys whose inattention might have (but probably didn’t) deprive their clients of a favorable outcome in court proceedings.
One Comment
As you know, I have read and written about this case:
http://www.marylandinjurylawyerblog.com/2008/07/lost_of_chance_in_medical_malp.html
I really think the logic of the case would certainly apply to any legal malpractice case. I would hate to be the defense lawyer arguing this does not apply in a legal malpractice case. I think the argument is a dead loser.
You cite a law review article suggesting that a law student sees it differently. But when you read the actual article, you will find that he does not cite a single state where a court drew a distinction between loss of chance in a legal malpractice context and loss of chance in a medical malpractice context and said one was actionable and one was not.