TORTS: “LOSS OF CHANCE” CLAIM LIMITED TO MEDICAL MALPRACTICE

In Niang v. Dryades YMCA School of Commerce, Inc., 19-0425 (La. App. 4 Cir. 12/4/19), – – – So.3d – – -, the Fourth Circuit declined to expand the “loss of chance of survival” cause of action to non-medical defendants.  Despite a statute which arguably supported such a cause of action under case facts, the Fourth Circuit felt constrained to reject the claim.

On March 7, 2017, Mouhamadou Niang collapsed while playing basketball at a YMCA.  Mrs. Niang was certified in cardiac life support, and requested an automated external defibrillator (“AED”) to attempt to resuscitation.  Mrs. Niang was advised that an AED machine was not available.  Thereafter, Mr. Niang was transported to University Medical Center where he died on March 11, 2017 secondary to cardiac arrest.

Mrs. Niang sued the YMCA for failing to have an AED machine on premises and asserted multiple claims including a loss of chance of survival claim.  She contended that the lack of the defibrillator contributed to her husband’s death.  Under La. R. S. 40:1137.3, all “physical fitness facilities” such as the YMCA are required to have an AED available.

The YMCA filed a Motion for Partial Summary Judgment which was granted.  In its reasons, the trial court held that the “loss of chance” cause of action was limited to claims raised in a medical malpractice context.  The Fourth Circuit affirmed.

The Fourth Circuit found that, although styled as a Motion for Partial Summary Judgment, the YMCA had actually raised an Exception of No Cause of Action and therefore analyzed the issue as a pure question of law.  The Fourth Circuit reviewed prior Louisiana Supreme Court decisions providing a right to recover damages for a loss of chance of survival in the medical malpractice context including the decision in Hastings v.  Baton Rouge Gen. Hosp., 498 So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Court identified a cause of action where a stab wound victim with weak vital signs was transferred from the hospital after the patient lacked insurance. The Hastings court commented on the reduced burden of proof in such cases:

“The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

The Fourth Circuit identified no cases directly “on point” when the defendant was not a medical practitioner.  Therefore, the Fourth Circuit gave consideration to a noted Oklahoma decision in Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue.  The court in Hardy considered the public policy implications associated with expanding the loss of chance of survival claim to non-medical cases and reasoned that the policy concerns which justify a reduced burden of causation in medical malpractice claims do not transfer to ordinary negligence cases.  The cause of action against medical providers is supported by the “special relationship” of the physician and the patient.  No such relationship exists in a non-medical setting.

Citing to Hardy, the Niang court determined that allowing a loss of chance of survival claim with general negligence would allow for improper speculation as to a person’s chance of survival.  Identifying no controlling cases and the lack of any statute creating a cause of action in non-medical malpractice cases, the Niang court concluded that loss of chance of survival claims are not supported outside of the medical context.


Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a league tennis player, a cook, and a hobbyist writer.