Opportunities Lost

By BJ Branch of Backus, Meyer, Solomon & Branch

Recent [news] articles discussing the “Lost Opportunity” Doctrine quote individuals who appear to misunderstand the Doctrine. While reasonable people can disagree about whether the Doctrine is good social policy, it is important that the debate proceed from an accurate understanding of the Doctrine.

In Lord v. Lovett, the New Hampshire Supreme Court ruled that an injured person should have a remedy if a medical provider’s negligence deprives that person of “an opportunity for a substantially better outcome.” By way of example, assume you learn that you have a form of cancer which, if untreated, is fatal, but if surgically addressed, carries a survival rate of 40%. If a doctor’s negligence deprives you of the opportunity to have the surgery performed, thus denying you the 40% chance of a survival, should you have a remedy for that loss? In other words, is a 40% chance of survival an interest worth protecting?

When answering this question, one must examine how it would have been handled prior to Lord. Previously, if a person had a medical condition which carried a more than 50% chance of death then, no matter how gross the negligence of the medical provider, there would probably be no case. This is because New Hampshire law required that a medical malpractice claimant must prove, more likely than not (something over 50%) that the medical provider’s negligence caused the claimed damages, which in the example above, would be death. Thus, if the underlying illness itself carried a higher than 50% likelihood of death, you could never prove a greater than 50% chance of surviving.

If a doctor told me my medical problem, if untreated, was fatal 100% of the time, but with surgery there was a 40% chance of survival, I know that I would want the surgery. I would at least want a chance to make the choice. Consequently, all the Supreme Court did was recognize that people who are deprived by a doctor’s negligence of this opportunity for a better result, should have a remedy.

It has been contended that the Lord decision will result in increased litigation and settlement of cases without merit. However, for a variety of reasons, it is unlikely that there will be an increase in either litigation or settlements.

In a recent article, an insurance defense attorney indicated that a $1.4 million verdict was obtained in a case where negligence had not been proven. In fact, the jury was asked: “Do you find from a preponderance of the evidence that the defendants were negligent and that negligence proximately caused Mr. X a lost opportunity for a substantially better result?” The jury determined there had been negligence and found for Mr X. Claiming the “Lost Opportunity” Doctrine makes it unnecessary to prove negligence is completely inaccurate and a scare tactic.

This requirement of proving negligence ( a substantial deviation from acceptable care) is a significant impediment to an increase in litigation or settlement of cases without merit. Medical providers avoid liability if they show that they were not negligent. In that regard, they have many advantages over the patients they have harmed. They are in charge of all the records. They have exclusive control over documenting what was and what was not done. They have substantially greater access than any patient does to a network of physicians willing to review cases and testify in support of a particular physician’s actions.

Insurance companies use the substantial premiums they are paid to mount vigorous defenses, even in strong cases that are ultimately settled because they have merit, since they know the litigation costs incurred by the injured person are astronomical. People with valid claims often have no choice but to give up.

Moreover, in New Hampshire, large verdicts are rare. Many individuals probably recall a large verdict against McDonald’s arising from the spilling of hot coffee. That verdict would have never occurred in New Hampshire because a significant portion of that verdict was composed of “punitive damages” (money damages designed to punish a defendant) and New Hampshire prohibits punitive damages. Further, New Hampshire “caps” the recovery of individuals in some circumstances at very low amounts. For example, the spouse of a person who dies as a result of negligence is limited to a $50,000 recovery. If a 35 year old woman becomes a widow because a physician was negligent, that woman’s individual claim can never exceed $50,000, hardly a windfall for the loss of a spouse.

In closing, some people reading this article may conclude that I am just another lawyer greedily searching for more ways to make money. It is unfortunate but true that the profession’s reputation has fallen in the eyes of many. Used car salesmen and lawyers are viewed with a similar level of skepticism. However, while there are unprincipled used car salesmen, no one suggests that the “product” they are involved with should be outlawed since most people recognize that used cars have a value to society. Similarly, just because some lawyers are unprincipled, does not mean that the product which they are involved with is of no value to society. The Legislature should tread carefully when addressing the Lost Opportunity Doctrine because to deny a remedy to individuals who have been deprived of the opportunity of a substantially better result, often life versus death, would be unfair and unjust.

Appeared in Union Leader, Page A 11, February 12, 2003