Tuesday, July 27, 2021
Michael C. Mims, Richard Crisler, Properly Limiting the Lost Chance Doctrine in Medical Malpractice Cases: A Practitioners’ Rejoinder, 81 La. L. Rev. (2021):
In this rejoinder, written from the perspective of two defense practitioners, the authors respond to recent calls to relax the "loss of a chance of survival" doctrine in Louisiana. The authors argue that such attempts to relax the doctrine are flawed because they would significantly relax the plaintiff’s burden to prove causation, allowing plaintiffs to recover full or near-full medical malpractice damages, including special damages, potentially far in excess of the $500,000 cap, even when a plaintiff cannot prove causation of a traditional injury. The authors argue that the time has come for legislative clarification of the "lost chance" cause of action, which should involve establishing clear requirements regarding the narrow circumstances in which the lost chance doctrine may be applied, and adopting a percentage probability approach for the calculation of damages.