Loss of Opportunity

Abstract

Several months ago, I looked at the issue of what type of malpractice insurance a transport medical director should carry and some of the issues related to malpractice litigation. This month, I have reached into an obscure corner of medical malpractice law and examine the “loss of opportunity doctrine.” Loss of opportunity is a legal canon permitting recovery of damages for the elimination or reduction of prospects for achieving a more favorable outcome in a given clinical scenario. In medical malpractice actions, the loss of opportunity doctrine permits a claimantwith a 50% or less chance of survival or better outcome to recover damages for any negligence of the physician that reduced this chance of survival or better outcome. Insurance underwriters, physician groups, and many legislatures who understand that the loss of opportunity doctrine has opened the door and lowered the barriers to suits against physicians would like to see the law of medical liability codified and stabilized, by statute, to prevent the courts from expanding opportunities to sue such as those contained in the loss of opportunity doctrine. The loss of opportunity doctrine adversely affects the cost and availability of care. The Massachusetts Supreme Judicial Court inMatsuyama v Birnbaum1 described how to apply the loss of opportunity doctrine in a specific language that is included in the Massachusetts Superior Court Civil