RETHINKING LOST CHANCES IN MEDICAL NEGLIGENCE - THE LOSS OF EXPECTED THERAPEUTIC BENEFIT

Abstract

This paper argues that a lost chance of a better medical outcome in select cases of medical negligence is independently valuable and reflects the transgression of a distinct legal interest of the patient which deserves protection by the tort of negligence. Following a review of literature in Part 1, this paper will proceed in Part 2 to explain why the lost chance of a better medical outcome is only independently valuable in a case of ‘medical uncertainty’. In Part 3, it will be argued that the patient’s positive autonomy to pursue a better medical outcome in a ‘medical uncertainty’ case anchors his right an ‘expected therapeutic benefit’ (“ETB”). Part 4 will consider how the transgression with the patient’s right to an ETB can result in actionable damage–the loss of ETB. Part 5 considers the consequences of loss of ETB and how an award of damages for loss of ETB can be appropriately quantified.