lost chance doctrine in California

2001The gravamen of this theory seems to be that "`damages ought to be recoverable when, due to a doctor's negligence, a patient loses a substantial, though less than probable, chance of survival....'" ( Id. at p. 1608, 1 Cal.Rptr.2d 584 , citing Fennell v. Southern Maryland Hosp. (1990) 320 Md. 776 , 580 A.2d 206, 212 .) Thus, the theory would permit damages "for possible cure and possible lengthening of life and/or improved personal comfort from more prompt diagnosis and treatment" ( Dumas v. Cooney, supra, 235 Cal. App.3d at p. 1610 , 1 Cal.Rptr.2d 584 ), even though traditional principles of C

2001The gravamen of this theory seems to be that "`damages ought to be recoverable when, due to a doctor's negligence, a patient loses a substantial, though less than probable, chance of survival....'" ( Id. at p. 1608, 1 Cal.Rptr.2d 584 , citing Fennell v. Southern Maryland Hosp. (1990) 320 Md. 776 , 580 A.2d 206, 212 .) Thus, the theory would permit damages "for possible cure and possible lengthening of life and/or improved personal comfort from more prompt diagnosis and treatment" ( Dumas v. Cooney, supra, 235 Cal. App.3d at p. 1610 , 1 Cal.Rptr.2d 584 ), even though traditional principles of C

1995The undisputed evidence demonstrated that a properly and timely performed genetic test “would have provided only a 20 percent chance of disclosing the risk of Down’s Syndrome.” (Simmons v. West Covina Medical Clinic, supra, 212 Cal.App.3d at p. 702 .) In refusing to apply the lost chance doctrine, the court reasoned: “But we perceive a fundamental distinction between negligently reducing a patient’s chance of survival and negligently depriving a woman of the chance to abort a genetically defective child.

1995The undisputed evidence demonstrated that a properly and timely performed genetic test "would have provided only a 20 percent chance of disclosing the risk of Down's Syndrome." ( Simmons v. West Covina Medical Clinic, supra, 212 Cal. App.3d at p. 702 .) In refusing to apply the lost chance doctrine, the court reasoned: "But we perceive a fundamental distinction between negligently reducing a patient's chance of survival and negligently depriving a woman of the chance to abort a genetically defective child.

1995(Cf. James v. United States (N.D.Cal. 1980) 483 F.Supp. 581, 587 ; Pulvers v. Kaiser Foundation Health Plan, Inc. (1979) 99 Cal.App.3d 560, 565-566 [ 160 Cal.Rptr. 392 ]; 14 Fennell v. Southern Maryland Hosp. (1990) 320 Md. 776 , [ 580 A.2d 206, 210-212 ].) In our view, extension of the relaxed lost chance standard of causation to the present case, in which the only cognizable compensable harm to respondent is the conviction he suffered, is entirely inappropriate.

1995(Cf. James v. United States (N.D.Cal. 1980) 483 F. Supp. 581, 587 ; Pulvers v. Kaiser Foundation Health Plan, Inc. (1979) 99 Cal. App.3d 560, 565-566 [ 160 Cal. Rptr. 392 ]; [14] Fennell v. Southern Maryland Hosp. (1990) 320 Md. 776 , [ 580 A.2d 206, 210-212 ].) In our view, extension of the relaxed lost chance standard of causation to the present case, in which the only cognizable compensable harm to respondent is the conviction he suffered, is entirely inappropriate.

1995Bldg., Inc. (Fla. 1984) 445 So.2d 1015, 1019-1020 , fn. omitted.) Pulvers has not been followed in subsequent cases and did not discuss the lost chance doctrine.

1995Bldg., Inc. (Fla. 1984) 445 So.2d 1015, 1019-1020 , fn. omitted.) [14] Pulvers has not been followed in subsequent cases and did not discuss the lost chance doctrine. ( Bromme v. Pavitt, supra, 5 Cal. App.4th at p. 1501.) [15] In Simmons , the plaintiff brought an action for wrongful birth and wrongful life after her child was born with Down's syndrome.

1989Many of the lost chance cases rely on the following language contained in section 323 of the Restatement Second of Torts (1965): "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from *705 his failure to exercise reasonable care to perform his undertaking, if [¶] (a) his failure to exercise such care increases the risk of such harm...." (See Hamil v. Bashline (1978) 481 Pa. 256 [ 392 A.2d 1280 ]; Thompson

1989Many of the lost chance cases rely on the following language contained in section 323 of the Restatement Second of Torts (1965): "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from *705 his failure to exercise reasonable care to perform his undertaking, if [¶] (a) his failure to exercise such care increases the risk of such harm...." (See Hamil v. Bashline (1978) 481 Pa. 256 [ 392 A.2d 1280 ]; Thompson

1989(See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir. 1986) 799 F.2d 911 ; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131 ; Herskovits v. Group Health Co-op. (1983) 99 Wn.2d 609 [ 664 P.2d 474 ], conc. opn. of Pearson, J.; 2 for an informative discussion, see King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353 ; Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival (1985) 12 Pepper-dine L.Rev. 973; Annot., Medical Malpractice: “Loss of Chance” Causality

1989(See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir. 1986) 799 F.2d 911 ; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131 ; Herskovits v. Group Health Co-op. (1983) 99 Wn.2d 609 [ 664 P.2d 474 ], conc. opn. of Pearson, J.; 2 for an informative discussion, see King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353 ; Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival (1985) 12 Pepper-dine L.Rev. 973; Annot., Medical Malpractice: “Loss of Chance” Causality

1989(See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir.1986) 799 F.2d 911 ; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131 ; Herskovits v. Group Health Co-op. (1983) 99 Wn.2d 609 [ 664 P.2d 474 ], conc. opn. of Pearson, J.; [2] for an informative discussion, see King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353 ; Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival (1985) 12 Pepperdine L.Rev. 973; Annot., Medical Malpractice: "Loss of Chance" Causality

1989(See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir. 1986) 799 F.2d 911 ; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131 ; Herskovits v. Group Health Co-op. (1983) 99 Wn.2d 609 [ 664 P.2d 474 ], conc. opn. of Pearson, J.; 2 for an informative discussion, see King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353 ; Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival (1985) 12 Pepper-dine L.Rev. 973; Annot., Medical Malpractice: “Loss of Chance” Causality

1989Many of the lost chance cases rely on the following language contained in section 323 of the Restatement Second of Torts (1965): "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from *705 his failure to exercise reasonable care to perform his undertaking, if [¶] (a) his failure to exercise such care increases the risk of such harm...." (See Hamil v. Bashline (1978) 481 Pa. 256 [ 392 A.2d 1280 ]; Thompson

1989Many of the lost chance cases rely on the following language contained in section 323 of the Restatement Second of Torts (1965): "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from *705 his failure to exercise reasonable care to perform his undertaking, if [¶] (a) his failure to exercise such care increases the risk of such harm...." (See Hamil v. Bashline (1978) 481 Pa. 256 [ 392 A.2d 1280 ]; Thompson

1989(See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir.1986) 799 F.2d 911 ; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131 ; Herskovits v. Group Health Co-op. (1983) 99 Wn.2d 609 [ 664 P.2d 474 ], conc. opn. of Pearson, J.; [2] for an informative discussion, see King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353 ; Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival (1985) 12 Pepperdine L.Rev. 973; Annot., Medical Malpractice: "Loss of Chance" Causality

1989(See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir. 1986) 799 F.2d 911 ; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131 ; Herskovits v. Group Health Co-op. (1983) 99 Wn.2d 609 [ 664 P.2d 474 ], conc. opn. of Pearson, J.; 2 for an informative discussion, see King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353 ; Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival (1985) 12 Pepper-dine L.Rev. 973; Annot., Medical Malpractice: “Loss of Chance” Causality