Chapter 4.D.1 and 4.D.2--Causation and Statute of Limitations

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 cervical cancer screening (Pap smears), recommending anywhere from one to three years, depending on several factors such as age and past screening results.  For instance, annual screening is no longer considered necessary after three consecutive normal annual Pap smears.  For these women, annual screening would detect only 1 additional case of cancer per about 70,000 tests in women under 45, and 1 case per about 200,000 tests for women 45 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. Zafiropoulos, No. SJC-09455 (Mass. Nov. 21, 2005).

Return to home page.