On June 6th, the Court of Appeals issued its decision in Wild v. Catholic Health Sys., a case we previously reported on here involving a challenge to the loss of chance doctrine and charge. Unfortunately, however, the Court found that the defendants had failed to preserve the argument that a "loss of a chance" charge should not be given on the ground that New York does not recognize that doctrine. The Court instead found that the defendants had merely preserved the argument that the facts did not support a "loss of a chance" charge, an argument that the defendants did not make in the Court of Appeals. Having found that the "loss of a chance" language in the charge was not at issue, the Court took the defendants' challenge to the charge to be the argument that the lower court misstated the plaintiff's burden of proof. The Court held that, putting the "loss of a chance" language aside, the charge did not improperly decrease the plaintiff's burden of proof because it required the jury to find that the defendants' acts or omissions were a substantial factor in causing the injury and instructed the jury that the plaintiff must prove her case by a preponderance of the evidence.
Because the Court found the "loss of a chance" issue unpreserved, medical malpractice practitioners are left where they were before leave was granted in this case. Defense attorneys should be careful to object to a plaintiff's request for a "loss of a chance" charge both because the facts and expert testimony do not support the charge, if that is the case, and because "loss of a chance" has not explicitly been recognized by the New York Court of Appeals. Practitioners should argue that the "loss of a chance" concept lowers the plaintiff's burden of proof and would permit plaintiffs to have a recovery when it is not more likely than not that the alleged malpractice was the cause of the injuries sued upon. See T. O'Shaughnessy, Loss of a Chance: Finally Back in the Court of Appeals (N.Y.L.J. 7/16/12). In addition, they can argue that if the judge is inclined to give a "loss of a chance" charge, the plaintiff should only be able to recover damages reflective of the amount of chance actually lost. For example, if the jury finds that the plaintiff had a 40 percent chance of a cure in the absence of malpractice, the court would later multiply that percentage by the total damages awarded to determine the verdict amount against the defendant. This approach, referred to as the "proportional" approach to the "loss of a chance" problem, has been adopted by about 20 states (id.).