(dissenting).
[¶ 32.] Today’s decision unfairly targets the medical profession by needlessly creating a new formula to expand damage awards and a new class of plaintiffs to sue for them. The hallmark of every notable decision signaling a profound change in the law is a serious injustice that would otherwise go unrelieved. This case, however, offers a poor prototype for the sweeping changes in medical malpractice liability the Court now instigates. Under the common law process, in areas legislation has yet to control, the courts may advance the law to fashion civil remedies. SDCL 1-1-24. But as Professor Llewellyn once expressed, “conscious reshaping must so move as to hold the degree of movement down to the degree which need truly presses.” Karl N. Llewellyn, The Bramble Bush 156 (1930). If a need exists at all, let it be shown in the facts of a case and in the absence of current law to offer a sufficient redress. Whatever pressing need might be unfilled here, the plaintiff has utterly failed to show it.
1. No Pacts Support Changing Medical Malpractice Law
[¶ 33.] Parties opposing summary judgment must meet fact with fact, demonstrating that genuine issues remain for trial. SDCL 15-6-56(e). Curiously, the plaintiffs appellate briefs contain no facts. None. Perhaps this is no oversight, though *375it is a violation of our rules. See SDCL 15-26A-60(5). Instead, the plaintiffs argument consists of an abstract discussion on the merits of adopting a new rule for imposing additional liability on the medical profession. Thus, we are urged to approve the lost chance theory and radically transform medical malpractice law in South Dakota seemingly as a matter of progressive policy, as if the facts should make no difference.
[¶ 34.] In examining the record, nothing emerges to justify creating a new and exceptional way to recover damages against medical providers. Nonetheless, the Court chooses a single sentence out of the entire record for its reason to remake the law. In an affidavit submitted by Dr. Rupp of Nebraska, he opines that Jorgen-son “lost a chance to prevent the subsequent outcome or amputation of his right lower extremity.” What chance? A substantial chance, an even chance, a miniscule chance? Rupp’s affidavit offers naught. In oral argument, however, Jor-genson’s counsel repeatedly admitted, “We cannot prove a percentage of damages.” Indeed, counsel argued for full compensation if any chance, no matter how small, was lost because of negligence: “It would not be worth it,” he said, to seek only a percentage. Thus the theory this Court adopts is not the one the plaintiff espouses. Even so, counsel supposed that if the Court nonetheless remanded the case for trial on the lost percentage theory, counsel will “find someone” to testify on percentages. Surely, reversing summary judgment on a promise to find more evidence is without precedent.
[¶ 35.] Jorgenson himself elected to amputate rather than take prolonged treatment to heal his leg. He chose amputation although his doctors at the Myo Clinic told him he had a sixty percent chance of saving it. Now, he will seek compensation not for his lost leg, but for the percentage probability he had of saving it while in the care of his former doctor, before he went to the Mayo Clinic. If this seems legally insubstantial and illusory, imagine what a jury will strain to make of it. Most courts that apply this theory hold that to be accurately valued the lost chance must be substantial, identifiable, and quantifiable, without resort to conjecture or speculation. Fennell v. Southern Maryland Hosp. Center, Inc., 320 Md. 776, 580 A.2d 206, 212 (1990) (citation omitted). With the admitted lack of expert evidence on what chance existed, it makes no sense to order the trial judge to submit this case to a jury. How this can meet the Daubert standard is mystifying. See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Rogen v. Monson, 2000 SD 51, ¶¶ 26-28, 609 N.W.2d 456, 462-63 (Konenkamp, J., concurring). If the members of this Court are determined to adopt the lost chance theory, they should wait at least until a case arrives to justify it.
2. Changes in Doctrine Should Await a Demonstrated Need
[¶ 36.] In keeping with the principles of judicial restraint, adopting or rejecting, this new tort should await the case that truly calls it into issue. To confer this theory with premature lodgment in our state only encourages frivolous and costly experimentation in our courts. When the appropriate time comes, we should carefully consider all the advantages and disadvantages. Here, the Court generally discusses both sides of the question, but without weighing South Dakota’s specific circumstances. Even if the facts support a new rule, adopting it presents serious questions for the people of this state. Societal costs and potential for unfairness resulting from expanded liability against a particular segment of the economy, present real problems. See Fennell, 580 A.2d at 214 (quoting Gaver v. Harrant, 316 Md. 17, 557 A.2d 210, 217 (1989)).
[¶37.] South Dakota assuredly retains significant health care concerns. For instance, the more populous areas seem to have adequate numbers of medical provid*376ers, but many -of our state’s' small communities have no doctors at all. The cost for maintaining them is simply too high. Some rural communities rely on physician assistants, 'nurse practitioners, and other medically trained people. They too will be subject to extended liability under the broad new rule the Court creates today. What will it cost our small communities?
[¶ 38.] Rural medical providers will be liable for increased damages the same as their larger community counterparts, even though rural medicine is severely constrained by economics in the availability of such things as the latest diagnostic equipment. Emergency providers in rural areas may be particularly vulnerable. Deciding whether to treat immediately or stabilize for transport a critically ill patient can be easily second-guessed, especially when the patient’s chances are .precarious even in the best of circumstances. Although our Court gives little regard to such worries, other courts lend more weight to this reality. In rejecting the loss of chance theory, an Alaska court considered the adverse affect on rural medical care, writing, “the adoption of any version of ‘loss of chance’ seems particularly ill-suited to a state like Alaska where medical care must be delivered in remote locations....” See Crosby v. United States, 48 F.Supp.2d 924, 932 (D.Alaska 1999) (listing the advantages and disadvantages of the lost chance theory).
[¶ 39.] Deciding whether to widely expand liability against members of the medical profession invokes serious policy concerns, perhaps more properly resolved by our Legislature. Fennell, 580 A.2d at 214. Courts should give “appropriate deference to legislative action embracing policy goals and initiative.” Crosby, 48 F.Supp.2d at 930. The Crosby court, in deciding whether a claim for loss of chance could be maintained in a medical malpractice action under Alaska law, stated that the doctrine “involves significant and far-reaching policy concerns affecting the quality and cost of health care....” Id. at 931. Such questions, the court determined, are best left to the Legislature to address and resolve, as that forum is equipped to conduct hearings, collect data, analyze the competing concerns, and make more informed decisions.
[¶ 40.] The prospect of increased costs to the consumer cannot be discounted. It seems naive to suggest that creating a new cause of action and an additional way to recover damages where none could be recovered before will not increase claims. The likely effect of this new theory will be higher malpractice insurance premiums, which in turn translate into higher costs for health care with the danger of losing vital health services where they are most needed. In Knowles v. United States, 1996 SD 10, ¶ 60, 544 N.W.2d 183, 196, we acknowledged our Legislature’s grave concern “about the availability and cost of health care, especially in rural areas and small communities.” “Seeing a direct correlation between the availability of health services and skyrocketing medical malpractice insurance premiums,” the Legislature enacted a damages cap. Id. That these concerns persist is shown in the fact that after our decision in Knowles holding the former damages cap unconstitutional, the Legislature reenacted a damages cap in 1997. See SDCL 21-3-11.
[¶ 41.] This Court writes that the loss of chance doctrine has so far been applied only to medical malpractice situations and that most likely this is because statistics and probabilities in medicine are not as widely available in other types of malpractice. Yet we must be prepared to consider the expansion of this rule to other forms of professional malpractice. It seems almost discriminative to suggest, as some courts have, that only doctors, nurses, and their colleagues in the medical field should stand subject to greater liability for their errors. In fairness, “it is doubtful that there is any principled way we could prevent its application to similar actions involving other professions.” Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 406 (Tex.1993).
*377[¶42.] To be sure, the present system has its flaws. As the Court points out, a doctor’s negligence goes unrecompensed if a patient’s chance of recovery was less than fifty percent. Our statutes do not explicitly foreclose the lost chance theory. Plaintiffs may recover “for all the detriment proximately caused” by negligence, which might arguably include the loss of a chance to recuperate. SDCL 21-3-1 (emphasis added). But the Court’s solution provides no panacea. In fact, it may only multiply injustice. The Fennell opinion used this apt example:
[Ajssume a hypothetical group of 99 cancer patients, each of whom would have had a 33 1/3% chance of survival. Each received negligent medical care, and all 99 died. Traditional tort law would deny recovery in all 99 cases because each patient had less than a 50% chance of recovery and the probable cause of death was the pre-existing cancer not the negligence. Statistically, had all 99 received proper treatment, 33 would have lived and 66 would have died; so the traditional rule would have statistically produced 33 errors by denying recovery to all 99.
The loss of chance rule would allow all 99 patients to recover, but each would recover 33 1/3% of the normal value of the case. Again, with proper care 33 patients would have survived. Thus, the 33 patients who statistically would have survived with proper care would receive only one-third of the appropriate recovery, while the 66 patients who died as a result of the pre-existing condition, not the negligence, would be overcompensated by one-third. The loss of chance rule would have produced errors in all 99 cases.
580 A.2d at 212. Such concerns have caused a considerable number of jurisdictions to reject this theory. See, e.g., United States v. Cumberbatch, 647 A.2d 1098 (Del.1994); Gooding v. University Hosp. Bldg. Inc., 445 So.2d 1015 (Fla.1984); Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185 (1992); Fennell, 320 Md. 776, 580 A.2d 206; Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993); Ladner v. Campbell, 515 So.2d 882 (Miss.1987); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 512 A.2d 1126 (1986); Kramer, 858 S.W.2d 397.
[¶ 43.] Professor King, whose percentage recovery scheme this Court embraces today, describes his theory as akin to suing on a lost “raffle ticket.” Perhaps that is a fitting analogue. But should our laws function on the values that govern lotteries? See Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, 58-68 (1990) (Riley, C.J., dissenting). For South Dakota, this is no simple question. We are premature in approving the loss of chance theory. A decision should await the proper case before accepting or rejecting it.
*378123.22 Pattern Instructions Kansas 3d
123.22 LOSS OF CHANCE — BETTER RECOVERY — CAUSATION
The plaintiff has claimed that (he)(she) was denied a substantial chance for better recovery due to the fault of the defendant Before you can find the defendant to be at fault, you must find:
1. That __ would have had a substantial chance for better recovery if the _ had been (diagnosed)(treated) in á timely manner and under the applicable standard of care;
2. That the defendant failed to (diagnose) (treat)_(in a timely manner) (under the applicable standard of care); and .
3. That the resulting Injury or lessened degree of recovery suffered by _as a result of defendant’s failure was substantial.
A “substantial chance for better recovery” is one which is capable of being estimated, weighed, judged, or recognized by a reasonable mind. As used in this instruction, a “substantial factor” must be distinguished from a factor which had a merely negligible effect in causing _⅛ injury.
*379Pattern Instructions Kansas 3d 181.06
181.06 VERDICT FORM — LOSS OF CHANCE ISSUE — BETTER RECOVERY
We, the jury, present the following answers to the questions submitted by the court:
1- Do you find ___ was denied an appreciable chance for better recovery due to the fault of the defendant? Yes_No
[Proceed to question 2 and following questions only if you answered “yes” to question 1.]
2. What do you find, as a percentage of one hundred (100), were _⅛ chances for better recovery, if (he) (she) had received proper medical care? %
3. What do you find, as a percentage of one hundred (100), were _⅛ chances for better recovery under the care actually given? _%
4. Without considering your answers under any of the above questions, proceed to determine the damages sustained by___.
A. Noneconomic loss to date $__
B. Future noneconomic loss $__
C. Medical expenses to date $_
D.'Future medical expenses $__
E. Economic loss to date $_
F. Future economic loss $_
TOTAL DAMAGES $_
5. Our finding of monetary damages for noneconomic toss stated In paragraphs 4A and 4B includes ⅛ for pain and suffering.
Agreement on each of the above questions was by ten or more jurors.
Yes_ No __
Presiding Juror