Louisiana Injury Lawyer Blog

The loss of a less-than-even chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. The jury should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the survivor for that particular loss. In awarding damages for loss of a chance of survival, the jury is to focus on the chance of survival lost on account of the medical negligence as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record. In considering an award for loss of a chance of survival, the jury may consider evidence of percentages of chance of survival, loss of support, loss of love and affection, and other wrongful death damages. Smith v. State, 95-0038, (La. 6/25/96), 676 So.2d 543, 547-49.

Even if the negligence of a doctor did not cause the patient's death, because he was likely to have died anyway, damages can still be awarded if the doctor's negligence caused the patient to lose a less-than-even chance of survival. A loss of a chance of survival in any degree is compensable in damages. To establish causation in a situation when the patient dies, the survivor need only prove that the defendant's medical negligence resulted in the patient's loss of a chance of survival. The survivor does not have to prove that the patient would have survived if properly treated. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1278 (La. 1991); Hastings v. Baton Rouge General Hosp., 498 So.2d 713, 720 (La. 1986); and Smith v. State, 95-0038 (La. 6/25/96); 676 So.2d 543, 547.

There is no presumption that a doctor possesses the required skill and knowledge required of him by the controlling medical standards and that in treating his patients, that he applies that knowledge and skill. Williams v. Golden, 95-2712 (La. App. 4 Cir. 7/23/97), 699 So.2d 102, 106-07, writ denied, 1997-2788 (La. 1/30/98), 709 So.2d 708.