How Does Loss of Chance Affect Medical Malpractice Claims?

Loss of Chance Caused by Medical Negligence

Loss of chance is a type of medical negligence claim that can be filed when negligent care diminishes or eliminates a patient’s odds for a positive outcome. Instead of filing a claim for physical damages caused by a doctor or other healthcare provider, a loss of chance lawsuit claims that a patient lost the opportunity for a better outcome or recovery.

In order to prove loss of chance in a medical malpractice case, the plaintiff must provide evidence showing that the physician failed to meet the standard of care and negligently eliminated the chance of a better medical outcome. A doctor’s failure to meet the standard of care could include an incorrect diagnosis, delay in treatment, or improper treatment. Evidence of a patient’s loss of chance caused by medical negligence must prove the patient had a chance at a better outcome and the physician eliminated this chance. Expert medical testimony may be used by plaintiffs in a loss of chance case to provide opinion on whether malpractice occurred.

Oregon Ruling for Loss of Chance in Medical Malpractice Cases

In May 2017, the Oregon Supreme Court ruled that patients can file medical malpractice lawsuits when negligent care denies them the opportunity for a potentially better outcome. Previously, medical malpractice claims could only be filed in Oregon when a patient was physically injured under medical care. The revised ruling states that a “loss of a substantial chance of a better medical outcome can be a cognizable injury in a common-law claim of medical malpractice.”

The Oregon Supreme Court’s decision regarding loss of care was based on the case Smith v. Providence Health & Services. In 2011, Joseph Smith went to the emergency room at Providence Hood River Memorial Hospital because he was concerned he was having a stroke. He arrived at the emergency room less than two hours after he began experiencing symptoms including vision impairment, confusion, slurred speech, and headache. The doctors who saw Smith discharged him without performing complete physical or neurological exams.

When an MRI confirmed a week later that Smith had suffered from a stroke, significant brain damage had already occurred. Smith’s brain injury caused permanent cognitive impairment and limitations on his ability to perform some daily activities, both of which prevent him from working.

Upon filing a medical malpractice claim, Smith’s legal team argued that the negligence of the emergency room doctors cost him the opportunity for treatment that has been proven to help one-third of stroke patients recover with few or no remaining symptoms. The Multnomah County Circuit Court dismissed Smith’s case because, at the time, loss of chance was not considered grounds for medical malpractice claims in Oregon. Smith’s lawyers appealed this notion, but the Court of Appeals upheld the Circuit Court’s decision.

The case was then brought to the Oregon Supreme Court which reversed its previous position. The Court ruled that a medical negligence claim based on loss of chance is a cognizable injury under Oregon law. The Court held that although it had “not previously recognized loss of chance as a theory of recovery in a negligence case,” they concluded “that a loss of a substantial chance of a better medical outcome can be a cognizable injury in a common law claim of medical malpractice in Oregon.”

How Loss of Chance Affects Medical Malpractice Claims

Loss of chance provides patients with the rights to file medical negligence claims in the State of Oregon. Patients can now seek damages amounts when a physician’s failure to meet the standard of care prevents the chance of a positive medical outcome. A loss of chance case can be brought even if the patient’s likelihood of a better outcome is less than 50%.

Medical Malpractice Attorneys Serving Portland & Southwest Washington

The medical malpractice attorneys at Miller & Wagner are experienced and knowledgeable about loss of chance negligence cases. Our medical malpractice trial lawyers represent plaintiffs in medical negligence claims throughout Oregon and Southwest Washington. If you or your loved one lost the chance at a better medical outcome due to a physician’s negligence, one of our medical malpractice lawyers can help you initiate a claim. Contact us today.