Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
. . .
Finally, it is necessary to consider the amount of damages recoverable in the event that a
loss of a chance of recovery is established. Once again, King’s discussion provides a useful
illustration of the principles which should be applied.
To illustrate, consider a patient who suffers a heart attack and dies as a result.
Assume that the defendant-physician negligently misdiagnosed the patient’s
condition, but that the patient would have had only a 40% chance of survival even
with a timely diagnosis and proper care. Regardless of whether it could be said that
the defendant caused the decedent’s death, he caused the loss of a chance, and that
chance-interest should be completely redressed in its own right. Under the proposed
rule, the plaintiff’s compensation for the loss of the victim’s chance of surviving the
heart attack would be 40% of the compensable value of the victim’s life had he
survived (including what his earning capacity would otherwise have been in the
years following death). The value placed on the patient’s life would reflect such
factors as his age, health, and earning potential, including the fact that he had
suffered the heart attack and the assumption that he had survived it. The 40%
computation would be applied to that base figure.
(Footnote omitted.) 90 YALE L.J. at 1382. I would remand to the trial court for proceedings
consistent with this opinion.
Notes
1. The end of preponderance of the evidence? The majority and the concurrence disagree
deeply on how to proceed in the face of the so-called “lost chance” problem. Does the Herskovits
majority opinion give up the preponderance of the evidence standard in order to provide a remedy
for plaintiffs with low probabilities of survival?
2. Lost chance confusion. On the other hand, what does the lost chance approach of Judge
Pearson entail? For one thing, how do we measure the chance that has been lost? Note that the
majority opinion offers us at least two different approaches: an absolute reduction in the chance of
living, calculated using simple subtraction (39 – 25 = 14), and also a proportional reduction
expressing the reduction as a percentage of the total preexisting chance (39 – 25 / 39 = 36). Still
another way to express the lost chance would be as an estimate of the probability that Herskovits’s
death was caused by the defendant’s negligent nondiagnosis (14 / 75 = 19). Which of these three
approaches is the right way to express the chance that has been lost by the plaintiff? The court in
Herskovits barely grasped the difference between them, but it matters which approach we choose.
3. A probabilistic approach to causation—or recognition of a novel injury? What exactly
are courts doing when they apply the lost chance doctrine? The probabilistic view holds that the
lost chance doctrine is a kind of statistical technique for overcoming the limits on our capacity to
know the key causation question: whether the plaintiff’s death would not have happened but for
the defendant’s negligent act. When individualized causal reasoning fails, this view holds, the
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