146 N.H. 232 (2001)
-Plaintiff appealed dismissal of a medical malpractice suit. Dismissal was for "failure to state a claim."
-Plaintiff was suing defendant doctors due to that the defendants "deprived her of a chance for a substantially better recovery from her injures that she incurred in an automobile accident."
-P suffered severe injuries in an automobile accident.
-Plaintiff eventually sued D, stating that the D's negligence deprived P of a chance of a "fuller recovery."
-The issue of "Lost Opportunity Recovery" had not been faced before in New Hampshire.
-The court asked "is the doctor jointly liable with the ambulance driver?"
• May a plaintiff recover for a loss of opportunity injury in a medical malpractice case when the D’s alleged negligence aggravates the plaintiff’s preexisting injury such that it deprives the P of a substantially better outcome?
• Yes. A P may recover for a loss of opportunity injury in medical malpractice cases when the defendant’s alleged negligence aggravates the P’s preexisting injury such that it deprives the plaintiff of a substantially better outcome.
• The damages rewarded are based on expert testimony. If there is a 40% chance that someone gets better, then the court would reward 40% of the lost opportunity damages.
• The loss of opportunity doctrine is a medical malpractice form of recovery which allows a plaintiff, whose pre-existing injury or illness is aggravated by the alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain a better degree of recovery.
-There are three approaches the court will take to this type of claim:
• Under the third approach to loss of opportunity claims in medical malpractice litigation, the lost opportunity for a better outcome is, itself, the injury for which the negligently injured person may recover. A plaintiff may prevail even if her chances of a better recovery are less than 51 percent. The plaintiff does not receive damages for the entire injury, but just for the lost opportunity. In other words, if the plaintiff can establish the causal link between the defendant’s negligence and the lost opportunity, the plaintiff may recover that portion of damages actually attributable to the defendant’s negligence.
• The loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should be valued appropriately, rather than treated as an all-or-nothing proposition.
-Pre-existing conditions should be taken into account when valuing the destroyed interest.
-When those pre-existing conditions have not absolutely pre-ordained an adverse outcome, however, the chance of avoiding it should be appropriately compensated even if that chance is not better than even. Accordingly, it has been held that a plaintiff may recover for a loss of opportunity injury in a medical malpractice case when the D’s alleged negligence aggravated the P’s pre-existing injury such that it deprived the P of a substantially better outcome.
• A P may recover for a loss of opportunity injury in medical malpractice cases when the defendant’s alleged negligence aggravates the P’s preexisting injury such that it deprives the plaintiff of a substantially better outcome.
• The first approach, the traditional tort approach, is followed by a minority of courts.
-According to this approach, a plaintiff must prove that as a result of the defendant’s negligence, the plaintiff was deprived of at least a fifty-one percent chance of a more favorable outcome than she actually received.
-Once this burden has been met by the P, the P may recover damages for the entire preexisting illness or condition.
• Under this approach, a patient whose injury is negligently misdiagnosed, but who would have had only a 50% chance of full recovery from her condition with proper diagnosis, could not recover damages because she would be unable to prove that, absent the physician’s negligence, her chance of a better recovery was at least fifty-one percent. If, however, the patient could establish the necessary causal link by establishing that absent the negligence she would have had at least a 51% chance of a better outcome, not only would the patient be entitled to recover, but she would be awarded damages for her entire injury.
• The second approach, a variation of the traditional approach, relaxes the standard of proof of causation. The causation requirement is relaxed by permitting plaintiffs to submit their cases to the jury upon demonstrating that a defendant’s negligence more likely than not “increased the harm” to the plaintiff or “destroyed a substantial possibility” of achieving a more favorable outcome.
• The patient would not be precluded from recovering simply because her chance of a better recovery was less than 51%, so long as she could prove that the defendant’s negligence increased her harm to some degree.
-The precise degree required varies by jurisdiction. Some courts require that the defendant’s negligence increase the plaintiff’s harm by any degree, while other courts require that the increase be substantial.
-As in the traditional approach, once the plaintiff meets her burden, she recovers damages for the entire underlying preexisting condition or illness rather than simply the loss of opportunity.
-This approach “represents the worst of both worlds because it continues the arbitrariness of the all-or-nothing rule, but by relaxing the proof requirements, it increases the likelihood that a plaintiff will be able to convince a jury to award full damages.
Interested in learning how to get the top grades in your law school classes? Want to learn how to study smarter than your competition? Interested in transferring to a high ranked school?