University of New Hampshire Law Review


[Excerpt] “A close family member is diagnosed with late-stage breast cancer and now only has a fifteen percent chance of survival. She soon dies. Prior to her diagnosis, she had routine screenings every two years, but her previous doctor failed to detect the then existing cancer when she would have had a fifty percent chance of survival. In New Hampshire, from a legal standpoint, there has been no wrong. This legal concept of negligent medical care that causes a patient to have a lower percentage of survival, or a less favorable outcome, is referred to as the “loss of opportunity” or “loss of chance doctrine.” Generally, acceptance of the loss of opportunity doctrine has been limited to medical malpractice cases. Some courts and scholars have considered extending the loss of opportunity doctrine to other contexts, such as to legal malpractice, 4 or to those who fail to contact emergency help, 5 but with little success. In restricting loss of chance exclusively to medical malpractice in Massachusetts, the state supreme court identified four reasons why the loss of chance doctrine is “particularly well suited” for medical malpractice cases: (1) the high reliability of expert evidence; (2) the expectation that the doctor will “take every”

Repository Citation

Benjamin Lajoie, Reopening the Discussion of the Loss of Opportunity Doctrine in New Hampshire: A Look at Decisions Made in Light of Current Times, 13 U.N.H. L. REV. 99 (2015). Available at http://scholars.unh.edu/unh_lr/vol13/iss1/5