Brief Fact Summary. Plaintiff broke her neck in an auto accident and claimed that the hospital staff negligently misdiagnosed her injury, causing her to lose the opportunity for a substantially better recovery.Â She sued Defendants for medical malpractice, the trial court dismissed her action, and the higher court reversed and remanded.
Synopsis of Rule of Law. A plaintiff may recover for a loss of opportunity for a better recovery in a medical malpractice case when the defendant’s negligence aggravates the plaintiff’s preexisting injury such that it deprives the plaintiff of a substantially better outcome.
Issue. Â Whether Plaintiff can recover under the loss of opportunity doctrine.
Held. Yes.Â The loss the opportunity doctrine is a medical malpractice form of recovery which allows a plaintiff, whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain a better degree of recovery.Â The court explained three different approaches to loss of opportunity claims generally taken: (1) if a plaintiff proves that she was deprived of at least a 51% chance of a more favorable outcome than she received, she may recover damages for the entire preexisting condition; (2) if a plaintiff proves that the defendant’s negligence more likely than not increased the harm to the plaintiff, she may recover damages for the entire preexisting condition; (3) if a plaintiff can prove that she was deprived of at least a 51% chance of a more favorable outcome than she received, she may recover damages only for the lost opportunity for a better outcome, not for the entire preexisting condition.Â The court adopted the third approach, reversed the trial court’s dismissal, and remanded.
Discussion. This decision explains that a minority of jurisdictions approach this theory according to the standards explained in (1) & (2) above, which allow a plaintiff to recover for the entire preexisting injury upon proving causation by the specified standard.Â Many jurisdictions, however, as in the above case, only permit a plaintiff to recover damages for loss of opportunity itself, which can be difficult to calculate, but can be quantified through expe.