MICHAEL PRESSMAN
Tort law’s loss-of-chance doctrine (“LOCD”) is employed in many jurisdictions to resolve a problem arising in certain medical malpractice cases. In the paradigmatic case, the patient presents with a greater-than-50% chance of dying from a condition, the doctor’s negligence increases that chance, and the patient dies. Traditionally, the plaintiff would never recover because he cannot show by a preponderance that he would have survived absent the negligence. The LOCD, however, allows for partial damages reflecting the portion of the risk attributable to the negligence. As most commentators agree, the LOCD furthers both fairness and efficiency, and all jurisdictions should employ it.
But this Article argues that we should go much further. The rationales underlying the LOCD apply not only in the typical LOCD context, but in all tort cases. Accordingly, this Article advocates for two reforms: first, employing the LOCD not only in medical malpractice cases that call for its use, but also in cases raising relevantly similar issues in any other area of tort (most notably, in toxic torts and products liability); and second, employing LOCD-like partial damages to take into account underlying risk even in cases in which the underlying risk is not large enough to create the insurmountable hurdle. The first reform increases recoveries (awarding partial damages instead of no damages); the second decreases recoveries (awarding partial damages instead of full damages).
These proposals are important for three reasons: First: Both further both fairness and efficiency, and their practical effects are significant for parties affected by them. Second: Although the general rationale for the LOCD is clear, and despite commentators agreeing that it should be limited to typical LOCD cases, there is no plausible account of (or consensus on) why it should be limited to these cases—which is why many courts have rejected the LOCD. This Article solves this problem: Not only do we not need to limit the LOCD, but we should not. Accordingly, this Article provides a broad foundational account of the LOCD that, unlike past accounts, is plausible—thus also providing reasons for courts to employ it even in typical LOCD cases. Third: While the Article’s reforms constitute a crucial step for tort doctrine in taking chance seriously, they will also serve as a blueprint for analogous reforms in other areas of the law.