On calculating damages under a loss-of-chance theory of causation, see the thoughtful analysis in Lars Noah, An Inventory of Mathematical Blunders in Applying the Loss-of-a-Chance Doctrine, 70 Mo. L. Rev. (2005).
In Sutton v. St. Jude Med. S.C., Inc., No. 04-5211 (6th Cir. Aug. 23, 2005), the court recognized a right to recover for increased risk of future harm when a possibly defective implanted medical device required medical monitoring. For additional discussion of medical monitoring, see Symposium: Liability for Inchoate and Future Loss. 88 Va. L. Rev. 1625 2007 (2002).
The American Cancer Society recently revised its guidelines for
cancer screening (Pap smears), recommending anywhere from one to three
years, depending on several factors such as age and past screening
For instance, annual screening is no longer considered necessary after
three consecutive normal annual Pap smears. For these women,
screening would detect only 1 additional case of cancer per about
tests in women under 45, and 1 case per about 200,000 tests for women
and older. Sarah Feldman, How Often Should we Screen for Cervical
Cancer?, 349 New Eng. J. Med. 1495 (2003).
Developing a different approach to suits over adverse drug reactions when causation is difficulty or impossible to prove, see Margaret Berger & Aaron D. Twerski, Uncertainy and Informed Cohice: Unmasking Daubert, __ Mich. L. Rev. 258 (2005). They argue that patients should be able to sue for breach of informed consent if they are not warned of uncertainties about a drug's risk, but that they should be able to recover only a reduced measure of damages based on the the psychic harm of deprivation of their right to choose.
Emphasizing that the statute of repose is absolute, the
Massachusetts high court refused to toll the statute of limitations
despite allegations that the treating physician actively concealed the
true cause of a child's fatal medical injury. Rudenauer v.
SJC-09455 (Mass. Nov. 21, 2005).
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