This Comment examines the loss of chance doctrine and its different permutations. It argues that Nebraska should adopt the ‘distinct compensable injury’ approach to the loss of chance doctrine to allow patients to recover damages when their original chance of survival or better outcome is less than 50%. Nebraska should adopt this form of the loss of chance doctrine because it is consistent with traditional tort law principles and it provides vulnerable patients with a form of recovery that can help protect them from the negligence of their healthcare professionals. Most importantly, the reasons the Nebraska Supreme Court previously listed in opposition to the loss of chance doctrine are not persuasive. Part II of this Comment will survey the history and the three distinct approaches to the loss of chance doctrine: the ‘all or nothing’ approach, the ‘relaxed standard of proof’ approach, and the ‘distinct compensable injury’ approach. Part III will examine the status of the loss of chance doctrine in Nebraska. Part IV will analyze why the Nebraska Supreme Court is misguided in refusing to adopt the loss of chance doctrine and will also discuss the policy reasons supporting Nebraska’s adoption of the loss of chance doctrine.
Remington Slama, So You’re Telling Me There’s a Chance: An Examination of the Loss of Chance Doctrine Under Nebraska Law, 99 Nebraska Law Review 1014 (2020).