The courts in each state decide how much probability you have to show in order for the judge to let the jury decide your medical malpractice or dental malpractice case. In some states, you have to show that it was more likely than not (better than a 50% chance) that you would have gotten a different result. Other states only require you to show the malpractice was a substantial factor in producing the bad result and leave it up to the judge to decide what a substantial factor is in each case. In some states, you only have to show there was a remote possibility of a better result in order to get to the jury. A Texas lady won a case when she showed that she suffered anxiety because of a remote possibility of cancer resulting from a burn, and a Virginia man won a verdict for failure to diagnose his cancer of the esophagus, even though his chance of survival with the best treatment was only 9%.
The Rule Is: Your medical expert witness or dental expert witness should be able to testify that it is more likely than not (better than 50%) you would have received a better result, if you had not been the victim of malpractice. But, the Loss-of-Chance Theory only applies to the effects of malpractice and does not relieve you of the obligation of showing that the doctor committed a departure from good and accepted practice.
How Does This Affect Your Award?
While the possibility
that your injury was due to other factors probably cannot be used as a defense by the doctor, it can be used in determining the amount of your award. For example, if the Virginia jury had decided the patient with cancer of the esophagus should get $100,000.00, the award would have been reduced to 9% or $9,000.00. If the court had decided the lady with breast cancer had only a 50% chance of success with early treatment, she would have received 50% of the award. Theoretically, the court will adjust the amount of the award in proportion to the probable effect of the malpractice on your injury.
In real life, it is rare for a jury to reduce the amount of its award much if the doctor was only 50% or 60% liable. As already explained, many courts and jurors see malpractice awards as Loss Allocation, which is another way of saying that they use whatever funds available to help people, who have been injured or suffered a serious loss through a physician’s or a dentist’s carelessness or neglect.
Tags: dental expert witness, dental malpractice case, loss allocation, loss of chance theory, medical expert witness, medical malpractice, remote possibility, substantial factor rule, victim of malpractice