Did Trial Court Err by Refusing to Instruct Jury on 'Loss of Chance' Theory in Medical Malpractice Case?

Where Correct Initial Diagnosis Might Have Prevented Second Stroke

Jeffrey Geesaman et al. v. St. Rita's Medical Center et al., Case nos. 2009-1715 and 2009-2094

3rd District Court of Appeals (Allen County)

ISSUE: In a medical malpractice trial, when the plaintiff alleges that a doctor's substandard care was the proximate cause of a worsening of the plaintiff's medical condition, and the doctor admits fault but offers evidence that there was less than a 50 percent chance the plaintiff could have avoided a worsening of his condition if he had received a proper initial diagnosis and treatment, does a trial court commit reversible error when it refuses to instruct the jury to consider whether the plaintiff is entitled to partial damages based on a "loss of chance" theory of recovery?

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