Robert Rhee, ‘Probabilistic Causation in the Loss of Chance Doctrine: A Comment on Efficiency and Error Mitigation’

ABSTRACT
The loss of chance doctrine in tort law solves a recurring problem in the context of medical malpractice in which severely ill patients are misdiagnosed or mistreated. Absent a theory permitting probabilistic recovery, traditional factual causation inquiry always results in the finding of no causation in individual cases. But we know as a matter of practical certainty that negligence adversely affects outcomes in the minority of cases based on probabilities. While the theory is found, the majority rule of proportional damages, calculated as the product of the full value of physical loss and the percentage reduction in the chance of survival, is demonstrably flawed. It is inefficient in two ways: it does not sufficiently deter negligence, and it does not minimize total error in misallocated payments as between tortfeasor and plaintiffs and among plaintiffs themselves. This article provides a statement of the correct rule, the underlying probability analysis, and a demonstration of the error mitigation analysis. The core problems are two: (1) a conceptualization of the proper reference class; (2) a conceptualization of probabilities as not static, but dynamic with the incorporation of time and new information.

Rhee, Robert J, Probabilistic Causation in the Loss of Chance Doctrine: A Comment on Efficiency and Error Mitigation (April 26, 2022). Suffolk University Law Review, forthcoming.

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