I still remember my accident like it was yesterday. One minute I was driving my daughter to school and the next I was waking up in a hospital bed. It was frustrating to deal with the emotional trauma of forgetting an entire week of my life, in addition to stressing about my small child. Fortunately, we were both able to recover, but it wasn't easy walking dealing with the medical bills that accompanied the accident. I found myself struggling with things as simple as answering the phone, because I was nervous about dealing with another insurance adjuster. Fortunately, by working with a lawyer, I was able to make sense of my situation. I know that you can overcome difficult challenges too, which is why I shared my story on this website.
Some diseases are harder to treat than others. What happens, though, when a doctor's failure to diagnose a disease for a length of time (or at all) robs a person of their only real chance of surviving? In that situation, there may be a good reason to file a type of personal injury lawsuit known as a "lost chance" action. Here's what you should know.
What is the difference between lost chance actions and medical malpractice?
The failure to properly diagnose a patient and medical malpractice are closely related. However, lost chance actions tend to arise when the patient's chance of survival -- even with a proper diagnosis -- was 50% or under.
Under traditional medical malpractice and wrongful death rules, you'd have to prove that the physician's failure to diagnose was negligent and that the negligence was, more probably than not, the cause of the patient's death. In a loss of chance action, you aren't trying to prove that the doctor's negligent failure to diagnose was the cause of the patient's death. Instead, you are trying to prove that the doctor's negligence destroyed or diminished the patient's chances of survival.
For example, imagine that a patient goes to a doctor for months complaining of stomach pain. The doctor doesn't perform any testing. Instead, he or she assumes that the patient has some form of acid reflux or indigestion happening and prescribes some common acid reducers and a change in diet. Six months later, the patient is hospitalized and discovers that the stomach pain is actually an aggressive form of stomach cancer. The patient's chance of survival, had he or she been diagnosed earlier, would have only been 40%. With the delay in diagnosis, the patient's odds of survival drop significantly, to 10%.
Under the regular rules of recovery, the patient (or his or her family) wouldn't be able to collect on a wrongful death claim because the patient stood less than a 50% chance of recovery at the start. There would be no possibility that the doctor's negligence led "more probably than not" to the patient's death. A loss of chance action, however, gives you the ability to recover damages for the lost opportunity to survive -- a thing that has value, even when it is slim.
Who can file a lost chance action?
Lost chance actions can be brought by either a patient, if he or she is still alive, or by his or her estate as a wrongful death action. It is also often possible for close family members, such as spouses, dependent children, the parents of unmarried children, and other people who are financially dependent on the deceased to file, depending on the laws in your state.
Not all states recognize lost chance actions as a valid claim. The law in this area is still evolving, however -- for example, Minnesota adopted the lost chance doctrine as recently as 2013. In order to determine the specific laws in your state, contact an attorney in your area, like those at Welsh & Welsh PC LLO.