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What is the "Loss of Chance" doctrine?

Those in New York City who are familiar with medical malpractice lawsuits may believe that when it comes to compensation, the rules are fairly cut-and-dry: if one is able to prove that the unsuccessful outcome of a case was more than 50 percent due to the negligence of a doctor, he or she is awarded damages. However, if the doctor's liability is determined to be less than 50 percent, the claimant receives nothing. Yet this philosophy does not hold for all cases involving alleged physician negligence. If applicable, a plaintiff can be awarded damages based upon the 'Loss of Chance" doctrine.

The American Academy of Orthopaedic Surgeons describes loss of chance as follows: If the negligence of the doctor is believed to have reduced the chances of a successful outcome to a surgery, procedure, or treatment, the claimant may be awarded damages according to what the loss is determined to be. This holds true even in cases where physician liability is under the 50 percent threshold.

An example of this legal principle would be a patient undergoing a surgical procedure who is told explicitly that the chances of success are only 40 percent. During the procedure, complications arise, and the patient ultimately dies. If it's found that the complications were due in part to negligence by the surgeon, and that negligence caused the chances of success to decrease to 30 percent, the patient's family may be awarded compensation based upon the 10 percent decrease.

While the explanation of the rules behind this doctrine are not meant to serve as legal advice, they may offer more options to those working with New York surgical mistakes attorneys to recover compensation following an unsuccessful surgery. 

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