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Issue: Is there a but-for causation, because plaintiff could not quantify the
opportunity of recovery lost?
Reasoning:
Prior medical malpractice case law in New Hampshire had never squarely faced the
issue of whether a plaintiff could recover for lost opportunity. The court adopted
the majority rule, treating lost opportunity as a separate injury, for which
plaintiff could recover if she proved defendants' negligence caused that injury to
her, and her resulting damages, that is, the extent to which future damages were
increased, by the preponderance of the evidence. This type of injury fit perfectly
well within the plain language of the definition of a medical injury at, so there
was no need to even examine the legislative history, although it, too, supported
the adoption of this rule.
Notes:
3 different approaches court uses - what options?
○ Preponderance test - plaintiff must prove that the negligence deprived the
plaintiff of at least 51% of a more favorable outcome than she actually received.