Legal Memorandum: Physician's Failure to Diagnose

Issue: Under New Jersey law, does a plaintiff have a cause of action against a physician for missing the opportunity of improving his or her health because of a failure to diagnose?

Area of Law: Litigation & Procedure, Personal Injury & Negligence
Keywords: Cause of action; "Loss of chance" or "lost opportunity"; Physician's failure to diagnose
Jurisdiction: New Jersey
Cited Cases: 679 N.E.2d 1201; 873 P.2d 175; 695 P.2d 824; 695 N.E.2d 1321; 975 P.2d 1279; 95 N.J. 399; 471 A.2d 405; 483 F. Supp. 581; 119 N.J. 93; 760 N.E.2d 481; 741 P.2d 467; 668 N.E.2d 480; 670 A.2d 516
Cited Statutes: None
Date: 05/01/2004

New Jersey recognizes a cause of action for “loss of chance” or “lost opportunity.”  In Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), the New Jersey Supreme Court formally adopted the application of the doctrine of “increased risk.”

A clear majority of the courts that have considered proximate causation in the context of harm resulting from both a plaintiff’s preexistent condition and a defendant’s negligent discharge of a duty related to that condition have permitted the jury to consider whether defendant’s negligence increased the risk of harm and whether such increased risk was a substantial factor in producing the harm.

Id. at 104, 574 A.2d at 413 (emphasis added).   It went on to hold that application of the “substantial factor” causation test applied to such cases, rather than the “but for” test, the former test requiring the jury to determine whether the defendant’s deviation in the standard of care was, in the context of the preexisting condition, significantly related enough to the ultimate harm to meet the requirement of proximate cause.  Id. at 109, 574 A.2d at 406.

The Scafidi court discussed the loss of chance doctrine and distinguish it from the doctrine of increased risk.  Acknowledging the contribution to this issue by Professor Joseph King,*FN1 the court observed that in cases such as these the focus should be on damages—and the plaintiff’s damages should be limited to the value of the plaintiff’s lost chance […]

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