Shnoor on Loss of Chance Claims

Boaz Shnoor has posted “Loss of Chance: Behavioral Analysis of the Difference Between Medical Negligence and Toxic Torts.”  Here is the abstract:

Inrecent years, more courts have allowed claims for “loss of chance”(LOC) in medical negligence claims, while denying it in other cases,including toxic torts. At the same time, most of the legal theoreticalliterature supports recognizing LOC in toxic torts, and claims thatrecognizing LOC in toxic torts is at least, if not more, advantageousthan recognizing it in medical negligence.

This article aims toexplain this intriguing gap between theory and practice usingbehavioral law tools. The article claims that the differences in theway courts emotionally react to these kinds of cases leads courts toact differently in cases where current law does not allow them to rulein favor of the plaintiff and against the defendant. In medicalnegligence cases, courts strongly feel that defendants’ negligentbehavior is an outrageous betrayal of trust and that the plaintiffs’unique situation is so unfair as to justify punishing the responsibleperson. Therefore, they seek new legal ways to find the defendantliable, and are inclined to adopt new liability theories when causationwas not proved. In contrast, courts do not feel so strongly about toxictorts cases, since no trust is involved and the plaintiff did notexpect anything out of the polluter in the first place. Therefore,their inclination to adopt new liability theories that will allow for averdict in favor of the plaintiff in the absence of proof of causationis much weaker.

The above analysis has major implications forbehavioral law analysis: it emphasizes the pervasiveness of behavioralelements in the legal decision making process; it shows that thewillingness of courts to change the law is influenced by behavioraleffects; and it can aid theorists and lawyers in identifying situationsin which the courts would be susceptible to changing the law. Finally,it can aid in predicting in which cases the LOC doctrine has betterchances to be accepted in the future – in situations involvingbetrayal, where the negligent behavior of the defendant is anomalouscompared to the usual behavior in the defendant’s reference group, andthe plaintiff’s damage is exceptional.

ADL