Loss of Chance Doctrine Expanded to Include Serious Harm Short of Death

The Supreme Court of Washington state held that there is a cause of action in the medical malpractice context for the loss of a chance of a better outcome even when the ultimate result is some serious harm short of death. In this case, the plaintiff patient had suffered a trauma-induced stroke and was permanently disabled.


In bringing an action against the hospital and physicians, the plaintiff alleged that their negligent treatment diminished her chances of avoiding or greatly minimizing her disability. In deciding that there is such a cause of action the court held that the plaintiff making this claim must prove duty, breach, and that there was an injury in the form of a loss of a chance caused by the breach of the duty. In proving causation, a plaintiff should rely on established tort causation doctrines permitted by law and the specific evidence of the case. Because the plaintiffs made a prima facie case of the requisite elements of proof, the court reversed the order of summary judgment and remanded to the trial court for further proceedings.


See: Mohr v. Grantham, 172 Wash.2d 844, 262 P.3d 490 (Wash. Oct 13, 2011).