On Loss-of-a-Chance And Compensation

When a defendant tortiously destroys or reduces a victim's prospects for achieving a more favorable outcome, the plaintiff should be compensated for that lost prospect.Traditionally, once the plaintiff has shown that the defendant behaved negligently, he must then show that this behavior"caused"the injury complained. He must make two quite distinct showings of causation: cause in fact and proximate cause.The loss-of-a-chance doctrine should operate when all of the following criteria are present: (1) the defendant tortiously failed to satisfy a duty owed to the victim to protect or preserve the victim's prospects for some more favorable outcome; (2) either (a) the duty owed to the victim was based on a special relationship, undertaking, or other basis sufficient to support a preexisting duty to protect the victim's likelihood of a more favorable outcome, or (b) the only question was how to reflect the presence of a preexisting condition in...