Loss of Dimished Chance Doctrine Rejected

July 2, 2008

The Kentucky Supreme Court has published Kemper v. Gordon, involving the question of whether Kentucky would adopt the Lost of Diminished Chance Doctrine, or to put it, allow recovery by plaintiff’s whose death is not the result of the negligence, but who may have suffered a diminished chance of survival due to the negligence.  The Maryland Injury Lawyer Blog actually has a good post on the court’s opinion, although the author, Ron Miller disagrees with it.  You can read the entire post here.

While I certainly agree that the results are tragic, I must confess my agreement with the majority in this 5-2 decision.  I agree that the determinations regarding minute percentages between a diminished life is not something Kentucky court’s should be willing to enter.  Frankly, I doubt science, especially medical science, can even begin to offer a scientific basis for such a determination and instead will rely, as the majority fears, on medical experts, whose basis appears to be nothing but lay opinion guised as medical fact.

That being said, the case actually reversed a jury verdict in favor of Dr. Kemper.  According to the majority it was error for the trial court to exclude evidence that an expert in the case, Dr. John, had given different medical testimony in a previous case.  It ruled that the exclusion of other experts was proper due to a lack of disclosure.

While I certainly sympathize with the family, it should be noted that they did settle with two other doctor’s, who it would appear, based on the evidence, had far more chance of being responsible.  Having looked at the record, at least from the opinion, I think it will be difficult for a jury to find Dr. Kemper liable and I don’t think potential plaintiff’s should be able to get around this difficulty by claiming loss of diminished chance.  However, the introduction of the impeachment evidence at a new trial may change my opinion and this result.

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