Courts have been increasingly asked to expand physician liability for loss of statistical chances of survival or better outcome. The request has been made pursuant to the perceived right of the judiciary to conform the common law to the changing needs or the “felt necessities of the time.” The loss of chance doctrine raises fundamental questions as to the appropriate limits of judicial policymaking in the area of physician liability. Indeed, recognition of loss of chance as either a theory of causation or a cognizable harm marks a notable judicial expansion of physician liability with significant ramifications for both tort law and health care in general.
The two state supreme courts to have last addressed the issue reached polar opposite conclusions despite strikingly similar facts and medical issues. While the two decisions are perhaps a poor comparison to Dickens’s masterful Aeschylean tragedy, set amid the fortunes and misfortunes of Paris and London in 1775, they do depict “a tale of two cities” as to physician liability. Reduced to their core, the decisions represent the divergent views of the judiciary’s common-law authority and demonstrate the debate over the proper limits to judicial expansion of physician liability based on the “public policy” auspices of the common law. . .