Washington Law Review


Loss-of-Chance Doctrine in Washington: From Herskovits to Mohr and the Need for Clarification

June 01, 2014 | 89 Wash. L. Rev. 603

Abstract:  Loss of chance is a well-established tort doctrine that seeks to balance traditional tort causation principles with the need to provide a remedy to patients whose injuries or illnesses are seriously exacerbated by physician negligence. In Washington, the doctrine continues to create significant difficulties for judges, juries, and practitioners. Wherever it has been applied, it has often created difficulties. The loss-of-chance doctrine needs clarification—definitive, sensible, and workable guidelines to ensure that loss of chance is consistently and fairly applied. Part of the problem lies in the fact that courts and litigants use the term “loss of chance” as if it has a single, fixed meaning, when in fact it is an umbrella term that covers three separate—though sometimes overlapping—theories of recovery. This Comment first identifies and explains the different meanings attached to loss of chance, and briefly describe its varying implementation among states over the past three decades. Next, it tracks the evolution of loss-of-chance doctrine in Washington State from its inception to its current ambiguous status. Then this Comment analyzes the difficulties arising from ambiguities in the Washington State Supreme Court’s decisions in Herskovits v. Group Health Coop. of Puget Sound and Mohr v. Grantham, as well as and the recent Washington State Court of Appeals for Division III decision in Estate of Dormaier v. Columbia Basin Anesthesia, PLLC. The critique of these three cases underscores the extent to which ambiguities in loss-of-chance doctrine currently lead to inconsistent and unpredictable standards of causation and burdens of proof. This Comment concludes by suggesting concrete solutions to create a coherent and equitable doctrine that will allow plaintiffs to recover for loss of chance without creating incentives for unfair manipulation of common law tort standards. In order to illustrate the workability of these suggestions, this Comment applies them to the facts of Estate of Dormaier v. Columbia Basin Anesthesia, PLLC. While this Comment focuses primarily on Washington State law, the solutions presented are applicable in any jurisdiction that struggles with the loss-of-chance doctrine.

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