(dissenting).
[¶ 19.] I respectfully dissent. I would affirm the trial court’s summary judgment based on the evidentiary admissions of Jorgenson.
[¶ 20.] Jorgenson has failed to establish proximate cause. In recognizing a cause of action for a loss of chance in Jorgensen I, this Court stated “[p]roperly applied, the loss of chance doctrine does not alter or eliminate the requirement of proximate causation. Rather, a plaintiff must still prove by a preponderance of evidence, or more likely than not, that the defendant’s actions reduced [his] chance of a better outcome.” Jorgenson I, 2000 SD 87 at ¶ 17, 616 N.W.2d at 371 (emphasis added). See also Alberts v. Schultz, 126 N.M. 807, 975 P.2d 1279, 1287 (N.M.1999) (recognizing loss of chance doctrine but denying claim as plaintiff failed to establish doctor’s negligence proximately caused loss of leg). Thus, when a plaintiff affirmatively asserts that he would not have done anything differently had he been given that chance, there is a fatal “gap in the proof as *489to proximate cause.” McDaniel v. Ong, 311 Ill.App.3d 203, 243 Ill.Dec. 729, 724 N.E.2d 38, 44 (1999).
[¶ 21.] For example, in McDaniel, the guardians of a developmentally disabled nursing home patient argued that the doctor’s negligent failure to timely diagnose the patient’s pregnancy resulted in the loss of a chance to obtain an abortion. Id. at 42. The court held that, while the doctor’s conduct may have been negligent, there was no indication that the plaintiffs would have taken advantage of the medical intervention, namely, an abortion. Id. In fact, one guardian testified that an abortion had not even been considered. Id. The court stated the facts merely “show that the doctor’s actions caused a loss of the chance to consider an abortion, not the chance to obtain an abortion.” Id. (emphasis added). Similarly, in Aguilera v. Mount Sinai Hospital Medical Center, the plaintiff argued that the doctor’s negligent delay in administering a CT scan resulted in the failure to perform surgical intervention. 293 Ill.App.3d 967, 229 Ill.Dec. 65, 691 N.E.2d 1, 6 (1997). The court, however, held the absence of evidence showing the CT scan would have led to the performance of neurosurgery failed to satisfy proximate cause. Id. at 6-7. In essence, a plaintiff cannot recover on a cause of action for lost chance when the plaintiff concedes the doctor’s negligence never prevented him from actually avafiing himself of the opportunity to achieve a better outcome.
[¶ 22.] The majority of courts considering loss of chance claims have held that not only does the plaintiff have to prove that thé defendant’s neghgence increased the risk of harm, the plaintiff must also prove that the defendant’s negligence was a “substantial factor” in bringing about the ultimate injury.2 This “substantial factor” test is nothing more than a test for proximate cause. Jorgenson, by his own admission, has shown that the lost chance was not a substantial factor in his undergoing an amputation.
[¶ 23.] Furthermore, Jorgenson did not beheve that the possibihty of saving his leg, given the length and rigor of the treatment necessary in such an attempt, would have achieved a better result. When asked if he would have changed his mind had he been given a seventy-five percent success rate as opposed to a sixty-percent success rate, Jorgenson testified “Probably not.... I don’t have 2½ years to be there and I don’t want bone grafts, operations, and still probably lose my leg. Plus, it would have been a fused ankle with a rocker bottom shoe, so I would still have been crippled.”3 See Vaughn v. John *490Morrell & Co., 2000 SD 31, ¶ 36, 606 N.W.2d 919, 926 (holding plaintiff may not “assert a better version of the facts” than testified to below) (citation omitted). Jor-genson’s informed choice interceded to preclude the increase of chance from saving his leg, in effect reducing the chance of a better outcome to zero. See Alberts, 975 P.2d at 1285 (holding loss of chance claim exists only where injury could have been avoided, but “[(Correcting the problem is no longer possible.”); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990) (holding plaintiff claiming lost chance must prove defendant reduced opportunity of avoiding harm) rev’d in part on other grounds, 467 N.W.2d 25 (Mich.1991). The amputation would have occurred, even in the absence of any negligence by Vener, because Jorgenson believed that he had already achieved the better outcome.
[¶24.] No matter the approach4 used for determining proximate cause, one common thread remains: a plaintiff must demonstrate harm by showing the doctor’s negligence deprived him of a chance at a better result. Jorgenson’s lost chance cannot be valued because of his own testimony that the ultimate injury was not a lost chance of a better outcome, but a lost *491chance of a different outcome. Jorgenson cites no case law supporting Ms assertion that a loss of chance claim is compensable without any proof of harm. See State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599 (stating failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and issue is deemed waived) (citation omitted). Accordingly, where the element of proximate cause has not been satisfied, the element of damages cannot be reached.
[¶ 25.] Because Jorgenson testified that the earlier discovery of his infection would not have changed his course of action, I would hold that there can be no recovery for the lost chance in this case. As in McDaniel, Jorgenson has merely shown that the doctor’s alleged negligence caused the loss of a chance to consider the two-year treatment to try and save his leg at a possible success rate of seventy-five percent as opposed to sixty percent. He has not shown the loss of a chance to actually obtain the treatment. Indeed, he testified that obtaining the treatment was not the better result for him. I would not hold that a plaintiff be required to undergo the treatment in order to recover on a loss of chance claim, only that he deem it a possibility at a better outcome and consider it accordingly.
[¶ 26.] It is indisputable that our Constitution provides a litigant the right to have factual issues tried by a jury. But where there is no issue of fact, there is no right to a jury trial. Here, there was no question of fact left for a jury to consider, as Jorgenson’s own testimony has already given the answer. Jorgenson’s deposition testimony, that he would still choose amputation given an increased fifteen percent chance of success, factually negates the possibility of a better outcome and thereby precludes his recovery on a loss of chance claim. Simply put, Jorgenson testified his way out of court. Therefore, I would affirm the trial court’s decision.
. See McBride v. United States, 462 F.2d 72 (9thCir.1972) (applying Hawaii law); Jeanes v. Milner, 428 F.2d 598 (8thCir.1970) (applying Arkansas law); Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994); Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (N.J.1990); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824 (1985); Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Thornton v. CAMC, 172 W.Va. 360, 305 S.E.2d 316 (W.Va.1983); Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981); Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (N.Y.App.Div.1974).
. The majority suggests that Jorgenson should not be held accountable for his testimony because it was "an after-the-fact statement.” The nature of the adversary process, however, relegates all deposition and trial testimony to the category of after-the-fact statements. This testimony is of no less value or weight simply because it is elicited in a deposition. At a minimum, this testimony would be relevant in determining whether Jorgen-son breached a duty to mitigate damages. See, e.g., Kingv. Clark, 709 N.E.2d 1043, 1048 (Ind.Ct.App.1999) (holding patient’s choice of lumpectomy over mastectomy and refusal to complete all six chemotherapy sessions "contributed as a legal cause to the harm she *490suffered.”); Borkowski v. Sacheti, 43 Conn.App. 294, 682 A.2d 1095, 1111 (1996) (recognizing that patient's conduct did not rise to level of contributory negligence but was relevant in determining defendant's level of liability); Chudson v. Ratra, 76 Md.App. 753, 548 A.2d 172, 181 (1988) (holding that while patient's failure to follow through with treatment did not rise to level of contributory negligence, it was relevant in determining amount of damages).
. The determination of causation and damages in a loss of chance case may be done by three different basic methods. The two methods representing the extremes of the spectrum, are the "all or nothing” method and the Restatement (Second) of Torts method. The "all or nothing” method allows recovery only in those cases where the plaintiff proves a better than fifty percent chance of recovery. If the plaintiff is successful, the defendant is liable for one hundred percent of the loss; recovery “is not discounted by the chance that the loss might have occurred even absent the tort.” Wendland v. Sparks, 574 N.W.2d 327, 331 (Iowa 1998) (quoting Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale LJ 1353, 1365-66 (1981)). If, however, the plaintiff cannot prove a greater than fifty percent lost chance, recovery is precluded entirely-
The majority herein uses the Restatement method, or "any loss” approach to causation, which holds a medical professional "subject to liability to the [plaintiff] for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases such harm....” Restatement (Second) of Torts § 323(a). Under this method, the increased risk need not be significant, so long as some harm was caused. This standard of proof is relaxed to the point of being nonexistent.
I would choose to adopt the more moderate and practical "substantial factor” test in reviewing Jorgenson’s loss of chance claim. See Jeanes, 428 F.2d at 605; Delaney, 873 P.2d at 182. This method relaxes the standard of proof without eliminating it. A plaintiff meets the initial threshold by showing that a significant chance of survival or a better recovery was lost. Id. at 184. This approach is used not only to determine whether a plaintiff should recover, but also the amount of recovery "based upon what [he] lost by being deprived of the opportunity to receive early treatment and the chance of realizing gain in avoiding physical harm or loss of life.” Jorgenson I, 2000 SD 87 at ¶ 31, 616 N.W.2d at 374 (Amundson, J., concurring). Liability exposure is apportioned to fault. See McKellips v. St. Francis Hosp., Inc., 741 P.2d 467 (Okla.1987). Thus, Jorgenson could recover for Vener’s delayed diagnosis only if: (1) Vener's conduct was determined by the court to have been negligent; (2) that negligent conduct was a substantial factor in bringing about the ultimate injury; and (3) a fifteen percent lost chance is determined by the court to be significant.