Lord was injured in an automobile accident. At the
hospital, Lord claimed that Lovett and other medical personnel negligently
failed to properly diagnose and treat her injuries, exacerbating the
situation. Lord sued.
Lord had back injuries and the doctors didn't immobilize
her spine while they were working on her. That cost her a chance to avoid permanent injury (aka lost opportunity).
The Trial Court dismissed the case. Lord appealed.
Lord brought in an expert that testified that Lovett's negligence
deprived Lord on an opportunity to recover. However, the degree of
recovery could not be quantified.
The Trial Court found that a lost opportunity is
not a recognized theory of negligence.
The Appellate Court reversed and remanded the case for
trial.
The Appellate Court found there were three different
approaches to loss of opportunity claims:
1) The plaintiff must prove that as a result of the
defendant's negligence, the plaintiff was deprived of at least a
51% chance of a more favorable outcome than actually received. If the
plaintiff meets this burden, they can recover for the entire
injury.
aka the Traditional Lost Opportunity Doctrine.
2) The plaintiff must only prove that the defendant's
negligence increased the plaintiff's harm to some degree. Again, if the
plaintiff meets this burden, they can recover for the entire
injury.
aka the Relaxed Causation Doctrine.
3) The loss of opportunity is the injury itself, so even
if the plaintiff meets the burden of proof, they can only recover for
the portion of damages actually attributable to the defendant's negligence,
not the entire injury.
aka the Lost Chance Doctrine aka Value of the
Chance Approach.
The Appellate Court found that the third approach was the
correct one.
