In Herskovits v. Group Health, the Washington Supreme Court held that loss of a less-than-50% chance of survival is a compensable injury under the Washington wrongful death statute. The court did not agree, however, on the proper method for determining causation in a loss of chance case. Neither of the two methods of causation analysis proposed by the court is satisfactory. Recovery for loss of a less-than-50% chance of survival is not possible under traditional causation principles, and should be allowed only if a court is willing to adopt a possibility standard of proof and adjust damages to reflect the uncertainty of causation. This Note first outlines the policy justifications for allowing recovery for loss of a less-than-50% chance of survival. It then describes and evaluates the attempts by the Herskovits plurality and "lead" opinions to solve the causation problem. It concludes that neither approach is analytically successful, and that only a result-oriented approach can lead to recovery. Under this result-oriented approach, a court would adopt a possibility standard of proof for causation, and assess damages based on the statistical likelihood of causation.
Linda M. Roubik,
Recovery for "Loss of Chance" in a Wrongful Death Action—Herskovits v. Group Health, 99 Wn. 2d 609, 664 P.2d 474 (1983),
59 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol59/iss4/13