Warner Miller


This Note commends the Herskovits court for recognizing the loss of-a-chance claim as a legitimate cause of action. Chance interests are worthy of the protection of tort law. We can be statistically certain that the destruction of chance interests in survival results in actual losses. The burden of such losses should not fall exclusively on the victim, particularly when the interfering conduct of the wrongdoer has deprived the individual victim of the ability to know and prove with certainty the value of the lost chance. The burden of the loss can be shifted in an equitable manner to the negligent actor. Moreover, the risk of tort liability will provide a useful spur to the medical community to exercise due care in the diagnosis and treatment of typically fatal diseases and conditions. Finally, the recognition of the value of a chance interest in survival is the rational culmination of a deepening commitment within the law of torts to compensating those whose exposure to grave risks of harm has been negligently increased. The Herskovits decision, while dramatic, builds upon a well-documented tradition of solicitude toward loss-of-a-chance victims. The Herskovits court was deeply divided, however, as to both whether and under what restrictions loss-of-a-chance recovery should be permitted. The theory of recovery adopted by the court's lead opinion contrasts so starkly with that of the specially concurring plurality that the majority's decision to remand the case for trial lacks a controlling rationale. The two opinions proposed conflicting methods of calculating damages in loss-of-a-chance actions. Hence, the value of Herskovits as precedent lies only in its pronouncement that Washington courts are willing to recognize the loss-of-chance claim as one upon which relief may be granted. This Note recommends that Washington courts adopt the approach to loss-of-a-chance recovery proposed by the Herskovits plurality. The plurality's approach provides for a recovery commensurate with the magnitude of the chance interest destroyed, thereby ensuring fairness to both the plaintiff and the defendant. The proposal permits recovery without resort to corruption of well-settled tort causation doctrine, thus providing the most efficient accommodation of the competing policy concerns." The Note identifies the presumption of proportionate causation underlying the plurality's approach to loss-of-a-chance actions. The Note also explores appropriate limitations on loss-of-a-chance recovery and the implications of Washington's adoption of the doctrine. This Note will discuss the weaknesses of the lead opinion's analysis and the insubstantiality of the dissenters' concerns."

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