Torts Class Notes 9/6
Loss of Chance Theory of Causation :
Defendant’s negligence-(causation)- lost chance of better result
Different from:
Defendant’s negligence-(causation)-amputation of lost leg
What is the court’s rationale/theory for the lost chance theory?
Deterrence- the failure of a doctor to eliminate small risks would not be negligence w/o deterrence
What about the loss of chance to avoid injury greater than 50%?
1) will all loss of chance cases result in recovery that is proportional to the loss?
2) are we talking about two different types of injury? Loss of chance v. negligence
ð The loss of chance is the doctor’s negligence in caring for an injury already present
ð The crucial question is if the doctor created the initial injury
Other questions:
Can one sue before the harm of the negligence of the loss of chance?
The court reasoned that the harm (aggravation of the initial injury) from the negligence must be done before damages can be recovered
To whom does this loss of chance apply? Can other cases that are non-medical also use the loss of chance theory?
If so, could the Grimstad case fall under a loss of chance theory? (Restatement p.359)
What arguments could be used to restrict loss of chance to only medical malpractices?
The degree of the duty of such a professional, a physician, the nature of the relationship between doctor/patient demands a stricter standard than other/most relationships.
Other points:
Could the plaintiff argue that the very fact that the doctor did not perform an initial angiogram caused the actual lack of production of evidence?
A very persuasive argument
Cases in which there are Multiple causes working simultaneously:
1) A negligently starts a fire + B negligently starts fire = simultaneously destroying P’s house
The “but for” test can not be used in such a situation
Substantial factor test is used instead (proved by a preponderance of the evidence)
2) A negligently starts fire that destroys P garage + B negligently starts fire that destroys P house
Both defendants are liable for the damage that they each caused
ð Contributory factor
3) A negligently starts a fire + B negligently starts a fire= A’s fire destroys P’s house , B’s fire passes over the fire.
ð Sequential factor
4) A negligently starts a fire + fire started by lightning = P’s house is destroyed
As long as A was a substantial factor in the harm, then A is liable for damages
Notes on Summers v. Tice
Which above example would Summers compare?
This case is unlike any of the hypothetical because one shot caused the major damage, however no one can determine who caused it.
ð This case poses complications because both defendants have a 50% probability that they caused the injury-the plaintiff doth cannot prove beyond a preponderance (just a little more than 50%) that one defendant over another caused the injury. W/o modification, the plaintiff should/would have lost the case.
What is the rationale of the decision of the court?
The court reasons that both
in the DES cases, one defendant might have only a 2% or less liability
Summers often cited as a case in which burden of proof shifted because defendants might have a better chance of showing culpability, however in DES, the defendants are in no better position to prove culpability.
Unlike Summers, there is an extra factor of the latency period/statute of limitations.
Thus shouldn’t the logical conclusion of the DES cases be that the plaintiff’s lose?
The courts felt that it was effectuating the wishes of the legislation that these cases be opened
Tort law should play a role in these new types of cases (mass product)- how are they going to deal with these type of problems/harms?
Mkt. share is simply the measure of likelihood of causation
But what about a situation in which one defendant, though in the national market, can prove that plaintiff was not harmed by his particular product.
In Hymowitz- there is no exculpation-as long as manufacturer had a share in the market-they are liable.
Though no exculpation benefit’s the plaintiff- several but not joint liability benefit’s the company because the plaintiff will not recover 100% damages- this allows efficiency in the processing of these cases.
