Case: Lord v Lovett Procedural History: Def intended to move to dismiss, court permitted plaintiff to make a pre-trial

offer of proof. Trial court dismissed the action on the ground that lost opportunity was not recognized theory. court finds her theory questionable, so to save costs, they ask for the pre-trial offer of proof. They want to know if the plaintiff can satisfy the prima facie case? Facts: Plaintiff was treated by defendant physicians after suffering severe injuries in an automobile accident. She eventually sued them on grounds that their negligence deprived her of a chance of a fuller recovery. Lost opportunity for better recovery caused by negligence. But plaintiff (in pre-trial proof) says she will bring an expert saying she lost this opportunity, but with no exact damages can be calculated for this lost opportunity. Issue: Is there a but-for causation, because plaintiff could not quantify the opportunity of recovery lost? Holding: The court recognized loss of opportunity for a better outcome as a separate injury recoverable in tort, reversed the dismissal, and remanded for further proceedings. 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. RULE: Loss of opportunity is not inherently unquantifiable. A loss of opportunity plaintiff must provide the jury with a basis upon which to distinguish that portion of her injury caused by the defendant's negligence from the portion resulting from the underlying injury. This can be done through expert testimony just as it is in aggravation of pre-existing injury cases. 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. § If plaintiff cannot reach 51% threshold, then no recovery. If yes, then full recovery (of entire injury). Could be unfair to either plaintiff or doctors. ○ Relaxed-causation test - plaintiff would have to prove that defendant's negligence more likely than not increased the harm to the plaintiff or destroyed a substantial possibility of achieving a more favorable outcome. Damages receive in full. § NY - similar to relaxed-causation ○ Quantified-causation test - plaintiff established the lost opportunity, get the quantified value, and plaintiff can recover the differential