[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, or to those who fail to contact emergency help, 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 reasonable measure” to ensure a favorable outcome; (3) the nature of a patient seeking medical care (i.e., patients have pre-existing conditions) can make proving the causation element impossible; and (4) the doctor is in a better position to prevent the harm of his or her own negligence. For these reasons, the court joined other courts throughout the country in limiting the loss of chance doctrine to medical malpractice cases.
The focus of this note is to suggest that New Hampshire take a second look at the loss of opportunity doctrine. While some drawbacks to adopting the doctrine exist, the advantages outweigh the disadvantages. In coming to this conclusion, among other things, this note considers the reasons offered by the N.H. Legislature in abrogating the N.H. Supreme Court’s decision to adopt the loss of opportunity doctrine. However, contrary to what the legislature suggested, the doctrine does not appear to increase litigation or insurance premium rates. Therefore, this note implores the N.H. Legislature to re-evaluate its decision.”
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