concurring in part and dissenting in part.
I agree with the conclusion in the lead opinion that the trial court’s order of full summary judgment in the defendant’s favor should not be permitted to stand. The plaintiff has alleged that the defendant’s negligence proximately caused her additional, unnecessary suffering, medical treatment, and loss of earning capacity, for all of which the majority in this case would permit recovery of damages. I write separately to point out that the same reasoning that supports this limited recovery of damages by the plaintiff also supports the recovery of damages for her lost chance of recovery or increased risk of harm, if the proof at trial establishes that this injury, like the others recognized by the majority, was proximately caused by the defendant’s negligence.
Moreover, in limiting recovery at the summary judgment stage, the majority has brushed aside existing Tennessee case law that implicitly recognizes a patient’s right to recover for increased risk of harm in a medical malpractice action. See Truan v. Smith, 578 S.W.2d 73 (Tenn.1979), in which the circumstances were virtually identical to those alleged in the complaint now before us. In view of Justice Drowota’s past criticism of his colleagues’ perceived failure to adhere to established precedent, his current failure as author of the lead opinion to give appropriate weight to Truan seems, at best, uncharacteristic. See, e.g., State v. Middlebrooks, 840 *607S.W.2d 317, 348 (Tenn.1992) (Drowota, J., concurring and dissenting).
In Truan, as here, the plaintiff alleged negligence on the part of her physician in failing to diagnose breast cancer for some four months past the time that the tumor was detectable, thereby permitting the cancer to metastasize. In that case, we allowed recovery of damages based on proof that Dr. Truan’s negligence “either materially increased the chances of or accelerated Mrs. Smith’s death.” Id. at 76. It is true, as the majority notes, that the disputed issue in Truan was the existence of the physician’s negligence and not the scope of damages awarded by the jury, which totalled $186,000. Id. at 74. At the same time, there is no criticism by the Court, implicit or explicit, that would undermine the full award of damages in Truan for the plaintiffs lost opportunity to make a full recovery.
By contrast, the author of the lead opinion in this case criticizes and ultimately rejects the “loss of chance” doctrine as destructive of the proximate cause standard in medical malpractice cases. Although this view has been accepted by a small handful of cases, the vast majority of jurisdictions in this country have rejected it. A proper analysis will demonstrate the reason that the “loss of chance” doctrine has gained such rapid and widespread acceptance.
The traditional view of proximate cause in a medical malpractice action requires proof that the injury suffered by the patient would not have occurred but for the negligence of the defendant. Where the negligence of the defendant is not the only cause of the injury, this standard means that the plaintiff must prove that the defendant was at least 51 percent responsible for the outcome. Under what has been called the “all-or-nothing approach” of allocating damages under this rule,1 a plaintiff who successfully meets the 51 percent standard recovers 100 percent of the damages from the defendant, even though the defendant may have been only partly responsible for the result. Conversely, a plaintiff who can establish only that the defendant was 50 percent responsible (or less) collects nothing from the tortfeasor.
As one state high court has noted, this “all- or-nothing approach” is “an extreme position” and “clearly distorts the traditional principles of causation.” DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa 1986). In response to the overinclusive and underinclu-sive effects of the rule, a rapidly growing number of common law courts has developed an analysis of proximate cause that allows the allocation of damages in medical malpractice cases to acknowledge the injury to patients who put themselves in their doctors’ hands with a less than 51 percent chance of survival, and are deprived of their remaining chances by physician negligence.
The “loss of chance” or “increased risk of harm” doctrine actually has its roots in contract law. See, e.g., Chaplin v. Hicks, 2 K.B. 786 (C.A.1911).2 The doctrine was first applied to torts in the context of maritime “duty to rescue” cases. See, e.g., Gardner v. Nat’l Bulk Carriers, Inc., 310 F.2d 284 (4th Cir.1962), cert. denied, 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721 (1963).3 The “duty to *608rescue” analogy was later utilized in a medical malpractice case as dictum in Hicks v. United States, 368 F.2d 626 (4th Cir.1966) (applying Virginia law). In that case, the plaintiff brought suit against a Navy doctor under the Federal Tort Claims Act. Evidence indicated the patient would have had more than a 50 percent chance of surviving an obstruction of her small intestine had she not been negligently diagnosed by the doctor. The Fourth Circuit Court of Appeals in Hicks said:
When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not he in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942).
368 F.2d at 632 (emphasis added to “substantial possibility”).
The discussion of a “substantial possibility” was superfluous in Hicks because the record established that there was a “reasonable probability” that the decedent would have survived in the absence of the defendant’s negligence. Id. at 633. Twenty-five years after the Hicks decision, the Fourth Circuit Court of Appeals reexamined the “substantial possibility” language of Hicks in some detail and interpreted “substantial possibility” to be tantamount to a “probability”. The court concluded that “Hicks made no change to the law that requires the plaintiff to establish proximate cause by a preponderance of the evidence in order to prove medical malpractice negligence.” Hurley v. United States, 923 F.2d 1091, 1095 (4th Cir.1991) (applying Maryland law).
In the meantime, however, various courts had relied on the “substantial possibility” language in Hicks to relax the traditional standard of causation and to hold that destruction of such a “substantial possibility,” even if it amounts to less than a 50 percent chance of recovery, would satisfy that standard. See, e.g., Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970) (applying Arkansas law); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (1974). Other courts, however, have recognized that the oft-quoted passage from Hicks set out above was mere dictum and have rested the development of their analysis on other grounds.
For example, the “increased risk of harm” formulation has been applied to medical malpractice eases in several jurisdictions on the basis of Restatement (Second) of Torts § 323 (1965). Section 323 provides:
One who undertakes ... to render services to another -which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm ... (emphasis added).
Some courts have interpreted Section 323 as relaxing the standard for the burden of proof for causation and have, consequently, adopted a “substantial factor” standard. Under this approach, once the plaintiff shows that the defendant’s negligence increased the risk that the plaintiffs injury would occur, Section 323(a) allows the trier of fact to determine whether the negligence was a substantial factor in causing the injury, entitling the plaintiff to recovery. See, e.g., Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824, 828 (1985); Sharp v. Kaiser Found. Health Plan of Colorado, 710 P.2d 1153 (Colo.App.1985); Thompson v. Sun City *609Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Thornton v. CAMC, 172 W.Va. 360, 305 S.E.2d 316 (1983); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). Other courts have held that Section 323 defines the duty owed by the defendant health care provider to the plaintiff patient, but that it has no effect on the standard of proof of causation. See, e.g., McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 474-5 (Okla.1987); Ehlinger v. Sipes, 155 Wis.2d 1, 454 N.W.2d 754, 758 (1990). Still others have utilized Section 323 as a criterion for deciding whether there is “sufficient evidence of proximate cause to go to the jury,” but hold that it is inappropriate for use as a jury instruction. See, e.g., Blondel v. Hays, 241 Va. 467, 403 S.E.2d 340, 344 (1991).
In what turned out to be a watershed opinion on the “loss of chance” doctrine, a divided Washington Supreme Court held in a 1983 decision that, on the basis of Section 323, recovery of apportioned damages should be permitted “where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment [of his lung cancer], decedent probably would have lived to normal life expectancy.” Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 664 P.2d 474 (1983). In so holding, the Herskovits majority followed the reasoning of the Pennsylvania Supreme Court in Hamil v. Bashline, 392 A.2d 1280, and applauded that court’s adoption of Section 323.
However, in a concurring opinion that was to make him a luminary in the development of “loss of chance” causality in medical malpractice eases over the next decade, Associate Justice Vernon Pearson rejected the majority’s Section 323 reasoning as constituting an unwarranted departure from established Washington law on causation and offered instead a different analysis for the court’s decision. Justice Pearson first noted that under Washington law, “cause in fact must usually be established by expert medical testimony, and must be established beyond the balance of probabilities.” Id. 664 P.2d at 481. Thus, he concluded, the court “must decide whether Dr. Ostrow’s testimony established that the act complained of (the alleged delay in diagnosis) ‘probably’ or ‘more likely than not’ caused Mr. Herskovits’ subsequent disability.” Id. Justice Pearson continued:
In order to make this determination, we must first define the “subsequent disability” suffered by Mr. Herskovits. Therein lies the crux of this case, for it is possible to define the injury or “disability” to Mr. Herskovits in at least two different ways. First, and most obviously, the injury to Herskovits might be viewed as his death. Alternatively, however, the injury or disability may be seen as the reduction of Mr. Herskovits’ chance of surviving the cancer from which he suffered.
Therefore, although the issue before us is primarily one of causation, resolution of that issue requires us to identify the nature of the injury to the decedent. Our conception of the injury will substantially affect our analysis. If the injury is determined to be the death of Mr. Herskovits, then under the established principles of proximate cause plaintiff has failed to make a prima facie case. Dr. Ostrow was unable to state that probably, or more likely than not, Mr. Herskovits’ death was caused by defendant’s negligence. On the contrary, it is clear from Dr. Ostrow’s testimony that Mr. Herskovits would probably have died from cancer even with the exercise of reasonable care by defendant. Accordingly, if we perceive the death of Mr. Herskovits as the injury in this case, we must affirm the trial court, unless we determine that it is proper to depart substantially from the traditional requirements of establishing proximate cause in this type of case.
If, on the other hand, we view the injury to be the reduction of Mr. Herskovits’ chance of survival, our analysis might well be different. Dr. Ostrow testified that the failure to diagnose cancer in December 1974 probably caused a substantial reduction in Mr. Herskovits’ chance of survival. The [more likely than not] standard of proof is therefore met.
Id. (emphasis added).
After a detailed examination of the cases that had preceded Herskovits, decided prinei-*610pally on the basis of the dictum in Hicks or the “increased risk of harm” formulation taken from Section 323, Justice Pearson pointed to “the thoughtful discussion [on the subject by] a recent commentator,” citing to King, Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981). Herskovits, 664 P.2d at 486. Justice Pearson pointed specifically to the following portion of King’s influential article:
Causation has for the most part been treated as an all-or-nothing proposition. Either a loss was caused by the defendant or it was not. Inexplicably, the all-or-nothing approach has been allowed to slip its analytical moorings, influencing the identification and valuation of losses in cases involving preexisting conditions and claims for future consequences. A plaintiff ordinarily should be required to prove by the applicable standard of proof that the defendant caused the loss in question. What caused a loss, however, should be a separate question from what the nature and extent of the loss are. The distinction seems to have eluded the courts, with the result that lost chances in many respects are compensated either as certainties or not at all.
To illustrate, consider the case in which a doctor negligently fails to diagnose a patient’s cancerous condition until it has become inoperable. Assume further that even with a timely diagnosis the patient would have had only a 30% chance of recovering from the disease and surviving over the long term. There are two ways of handling such a case. Under the traditional approach, this loss of a not-better-than-even chance of recovering from cancer would not be compensable because it did not appear more likely than not that the patient would have survived with proper care. Recoverable damages, if any, would depend on the extent to which it appeared that cancer killed the patient sooner than it would have with timely diagnosis and treatment, and on the extent to which the delay in diagnosis aggravated the patient’s condition, such as by causing additional pain. A more rational approach, however, would allow recovery for the loss of a chance of cure even though the chance was not better than even. The probability of long-term survival would be reflected in the amount of damages awarded for the loss of the chance. While the plaintiff here could not prove by a preponderance of the evidence that he was denied a cure by the defendant’s negligence, he could show by a preponderance that he was deprived of a 30% chance of cure.
90 Yale L.J. at 1363-1364 (emphasis in original), quoted in part in Herskovits, 664 P.2d at 486 (Pearson, J., concurring). In the wake of the Herskovits decision, both Justice Pearson and Professor King have been extolled by various courts convinced of the usefulness of the lost-ehance-as-injury theory that King articulated and Pearson championed. See, e.g., Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589 (1991); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986); Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984).
It is true that the all-or-nothing approach has been retained by the highest courts in some states when asked to adopt the “loss of chance” doctrine in medical malpractice cases, on the hypothesis that to do otherwise would destroy the traditional proximate cause test. But the number of jurisdictions taking this course is very small. Of the 16 cases cited in the majority opinion as rejecting “loss of chance” or “increased risk of harm” as a theory of recovery of damages, only seven, in fact, actually decide that issue. See Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984); Fennell v. S. Maryland Hosp., 320 Md. 776, 580 A.2d 206 (1990); Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 512 A.2d 1126 (1986); Sherer v. James, 290 S.C. 404, 351 S.E.2d 148 (1986); Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex.1993); Manning v. Twin Falls Clinic and Hosp., 122 Idaho 47, 830 P.2d 1185 (1992). One additional state supreme court arguably supports the majority position, but only tangentially. See Clayton v. Thompson, 475 So.2d 439 (Miss.1985). See *611also Ladner v. Campbell, 515 So.2d 882 (Miss.1987).
The remaining cases cited in the lead opinion cannot legitimately be interpreted to reject “loss of chance” as a cause of action, either because the issue was not before the court, or because it was not the basis for the court’s decision.4 In addition, one of the cited cases involves speculation by a federal appeals court that the state courts of New Mexico would reject “loss of chance” as a theory of recovery if presented with the opportunity to do so; the Tenth Circuit panel acknowledged, however, that there were no state cases on point.5
In dramatic contrast to these half-dozen or so cases, the overwhelming weight of authority is contrary to the position taken by the majority here. Courts in some 80 or more jurisdictions have permitted the recovery of damages for “loss of chance” or “increased risk harm.”6 Moreover, many of the courts *612that have most recently recognized “loss of chance” as a theory of recovery have deliber*613ately fashioned their causation analysis to avoid doing damage to the traditional concept of proximate cause.
For example, in Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589 (1991), a prisoner, Lopez, who was incarcerated in a county detention center, died of a massive brain hemorrhage, apparently due to an aneurysm or congenital arterial defect. Lopez had been transferred to a hospital after he complained of headaches. Doctors made no attempt to diagnose the headaches, and after five days he was returned to jail. A few days later, Lopez experienced seizures and died. A wrongful death action was brought on behalf of Lopez, alleging medical malpractice by the hospital and doctor. A medical expert, testifying in a deposition on behalf of the plaintiff, stated that Lopez would have had a “reasonable chance,” but probably not a greater than 50 percent chance, of surviving the hemorrhage if he had been given the proper medical care. The trial court granted summary judgment for defendants, but the Supreme Court of Nevada reversed, adopting the “loss of chance” doctrine. The court stated:
By defining the injury as the loss of chance of survival, the traditional rule of preponderance is fully satisfied. In cases in which the plaintiff prevails, it can be said that the medical malpractice more probably than not decreased a substantial chance of survival and that the injured person ultimately died or was severely debilitated. Specifically, in order to create a question of fact regarding causation in these cases, the plaintiff must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care.
Id. 805 P.2d at 592 (emphasis in original).
On the issue of damages, the Nevada court concluded:
Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation. Specifically, “[t]he amount of damages recoverable is equal to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.”
Id. (quoting McKellips, 741 P.2d at 476).
Similarly, in Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990), a woman died as a result of an ammonitic fluid embolism during childbirth. An expert witness testified for the plaintiff that the survival rate of such a condition is 37.5 percent if an intravenous line is connected to the patient before the onset of the embolism. The plaintiff’s theory was that the intravenous line could have been used to infuse lifesaving fluids into the patient’s circulatory system. However, no intravenous line had been inserted.
A majority of the Michigan Supreme Court adopted the “loss of chance” doctrine, stating:
A number of courts have recognized, as we would, loss of an opportunity for a more favorable result, as distinguished from the unfavorable result, as compensable in medical malpractice actions. Under this approach, damages are recoverable for the loss of opportunity although the opportunity lost was less than even, and thus it is not more probable than not that the unfavorable result would or could have been avoided.
Under this approach, the plaintiff must establish more-probable-than-not causation. He must prove, more probably than not, that the defendant reduced the opportunity of avoiding harm.
Id. 462 N.W.2d at 52-53 (footnotes omitted).
On the issue of damages, the Falcon court noted that “[t]he proper computation of damages would limit the damages recoverable to only that amount of reduced chance of recovery actually caused by the physician’s negligent conduct. The theory, where adopted, should not result in an ‘all or nothing’ approach to causation.” Id. at 57 n. 47.
In DeBurkarte, 393 N.W.2d 131, a plaintiff brought a medical malpractice action against her family physician for negligently failing to diagnose breast lumps as cancerous. Expert testimony at trial indicated that at the time of the misdiagnosis, plaintiff’s chances for *614survival were at least 50 percent and perhaps as high as 80 percent, while at the time of trial they were zero. The Iowa Supreme Court held that “[f]rom this testimony, the jury could find that the defendant probably caused a reduction in her chance of survival.” Id. at 137-38 (emphasis in original). The court approved recovery for damages, but only to the extent that they resulted from the reduction of the plaintiffs chance of survival. Id. at 138.
In these and similar cases, the standard of proof for causation remains a probability, ie., greater than 50 percent, but the injury is redefined as the loss of chance to survive or to achieve a better outcome. If the majority here is sincere in its determination to adhere to the traditional proximate cause standard, it can obviously do so without denying patients injured by negligence the right to sue their tortfeasors — simply by following the lead of the courts that have redefined the injury, but have not lessened the standard of proof of causation.
Notably, the path the majority has determined to follow is that of a sharply divided Texas Supreme Court in Kramer v. Lewisville Memorial Hosp. 858 S.W.2d 397 (Tex.1993), rather than the precedent in the state of Tennessee as well as the overwhelming majority of other jurisdictions that have considered the question. Moreover, in adopting the Texas court’s reasoning as the new rule in Tennessee, the majority does more than merely disregard its own precedent. It establishes a policy that protects negligent physicians at the expense of patients who have suffered a very real injury at their physicians’ hands. As the Oklahoma Supreme Court in McKellips v. Saint Francis Hosp., Inc. noted:
[I]n those situations where a health care provider deprives a patient of a significant chance for recovery by negligently failing to provide medical treatment, the health care professional should not be allowed to come in after the fact and allege that the result was inevitable, inasmuch as that person put the patient’s chance beyond the possibility of realization. Health care providers should not be given the benefit of the uncertainty created by their own negligent conduct. To hold otherwise would in effect allow care providers to evade liability for their negligent actions or inactions in situations in which patients would not necessarily have survived or recovered, but still would have had a significant chance or survival or recovery.
741 P.2d at 474. As another court expressed it, a rule of law that does not permit recovery for what may have been a substantial opportunity to avoid death or permanent injury, “in essence, declares open season on critically ill or injured persons, as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with the proper treatment.” Roberson v. Counselman, 686 P.2d at 160.
Finally, the approach the lead opinion takes in this case
... puts a premium on each party’s search for the willing witness. Human nature being what it is, and the difference between scientific and legal tests for “probability” often creating confusion, for every expert witness who evaluates the lost chance at 49% there is another who estimates it at closer to 51%.
Thompson v. Sun City Community Hosp., 141 Ariz. at 607, 688 P.2d at 615.
Here, for example, if the plaintiffs produce an expert who testifies that with timely diagnosis Sandra Kilpatrick had at least a 51 percent chance of frill recovery (or of a longer life expectancy), she will be able to recover the very kind of damages that the majority in this ease has ostensibly denied her, based on their apparent assumption that the proof will show that she had a 50 percent or less chance of survival when she first appeared in Dr. Bryant’s office. Indeed, the estate of a deceased patient victimized by medical malpractice would not be limited in the recovery of damages for wrongful death in any case in which expert testimony established an original chance of recovery of more than 50 percent. Hence, the defendant in such a case would pay 100 percent of the total damages, rather than the percentage of damage for which he or she was actually responsible. There is no way to escape the conclusion that this all-or-nothing approach is *615analytically inconsistent with the comparative fault doctrine recently adopted by this Court. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). By contrast, the “loss of chance” doctrine spurned by the majority in this case is obviously analytically consistent with the allocation of damages based on comparative fault, regardless of whether the physician’s negligence is pegged above or below 50 percent in terms of proximate causation.
The courts in the 30 or more jurisdictions that .have recognized the “loss of chance” doctrine or permitted recovery for “increased risk of harm” certainly cannot be accused of doing so with the intent to dismantle the law of proximate cause in medical malpractice eases. They have, instead, recognized the reality of medical practice and the difficulty of predicting with any scientific certainty which patients with a life-threatening disease will survive and which will not. Without a crystal ball to guide them, medical experts must fall back on statistics, on percentages, and on five-year and ten-year survival rates.
Moreover, it is no coincidence that most of the major “loss of chance” cases involve cancer, a disease which, 100 years ago, left no survivors. In America today, perhaps half of all cancer patients survive, depending on the type and location of the disease and — significantly — on its earliest possible detection and treatment. Indeed, insurance industry figures show that failure to make a timely diagnosis of cancer was the second most frequent reason why doctors were sued nationwide, in 1990 and 1991.7 Public health educators emphasize that early detection is the key to curing cancer, especially in breast cancer cases such as Sandra Kilpatrick’s. A rule that bars her from any hope of legal recourse for alleged malpractice in the failure to diagnose her cancer before it metastasized would put Tennessee seriously out of step with recent legal developments in this country and with sound public health policy.
Emphasis on early detection of cancer will undoubtedly intensify as methods of early detection improve. Eventually, the level of technology may progress to the point that the amount of litigation for failure to diagnose cancer will decrease in an inverse ratio to it. Until then, however, a patient with a pre-existing medical condition that has been exacerbated by negligence on the part of the diagnostician should be able to recover for the very real injury that has occurred. The key is proper definition of the injury, not as the patient’s ultimate condition (which is, after all, caused in fact by the cancer and not by action of the treating physician), but in terms of those damages directly attributable to the diagnostician’s negligence, including shortened life expectancy and the fear and anxiety that accompany it. In failing to make this simple distinction, the majority in this case has clearly moved Tennessee back a step and not forward.
. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1366 (1981).
. In Chaplin, the plaintiff was one of 50 semifinalists in a beauty contest. Twelve out of the 50 were to be awarded three-year acting contracts. The defendant failed to notify the plaintiff of her selection as a semi-finalist until it was too late for her to appear for her personal interview. As a result, the plaintiff was not chosen to receive the acting contract. The plaintiff brought an action for breach of contract. The jury determined that the value of the lost chance was £100. The lower court's judgment was affirmed by the Court of Appeal, which recognized that the plaintiff was not suing for the value of the acting contract, but the value of a chance to win the contract. The court held that such chance was a compensable interest. Further, the court noted that difficulty in assessing damages should not bar recovery.
.In Gardner, the master of a ship failed to attempt to rescue one of his seamen who had fallen overboard. The seaman was last seen on the vessel five and one-half hours earlier, although it was not known how long he had been overboard. At trial, testimony was presented that there was some possibility that a rescue attempt could have saved the seaman’s life. The court stated:
It was less than a duly to rescue him, but it was a positive duty to make a sincere attempt at rescue. The duty is of such nature that its *608omission will contribute to cause the seaman's death. The duty arises when there is a reasonable possibility of rescue. Proximate cause is tested by the same standard, i.e. causation is proved if the master's omission destroys the reasonable possibility of rescue.
310 F.2d at 287.
. See Blondel v. Hays, 241 Va. 467, 403 S.E.2d 340, 344 (1991) (in wrongful death action based on medical malpractice, court held that "if a plaintiff’s evidence has shown that the defendant's negligence has destroyed any substantial possibility of a patient’s survival, then there is sufficient evidence of proximate cause to go to the jury," but indicated that this language should not be used in jury instruction); Grody v. Tulin, 170 Conn. 443, 365 A.2d 1076 (1976) (wrongful death action based on negligent failure to diagnose allegedly causing needless suffering and premature death not loss of chance of survival); Watson v. Medical Emergency Servs. Corp., 532 N.E.2d 1191 (Ind.App.1989) (dispositive issue involved existence or non-existence of negligence); Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn.1980) (“loss of chance” as a distinct theory of damages not raised, although court did say that jury "cannot be permitted to speculate as to whether earlier diagnosis or different treatment would have resulted in a cure”); Walden v. Jones, 439 S.W.2d 571, 574 (Ky.1968) (in medical malpractice action for undiagnosed herniated disc, court held that "bare possibility” that failure to operate caused paralysis was not enough to establish proximate cause); Horn v. Nat'l Hosp. Ass’n., 169 Or. 654, 131 P.2d 455 (1942) (dispositive issue concerned the standard of proof in a medical malpractice action based on a physician’s nonfeasance, rather than misfeasance).
. Alfonso v. Lund, 783 F.2d 958 (10th Cir.1986).
. See e.g., Waddell v. Jordan, 293 Ala. 256, 302 So.2d 74, 77 (1974) ("although prompt diagnosis and treatment might not have prevented a massive heart attack, such could have delayed or even prevented a terminal attack and impeded further damage of the heart”); Abille v. United States, 482 F.Supp. 703, 710 (N.D.Cal.1980) (applying Alaska law) ("[wjhere improper diagnostic techniques have been utilized, it is enough to show that the use of proper procedures could have altered the unfortunate outcome”); Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984) (”[w]e must remember ... that we are dealing with the limited class of cases in which defendant undertook to protect plaintiff from a particular harm and negligently interrupted the chain of events, thus increasing the risk of that harm[;] ... [i]f the jury finds that defendant’s failure to exercise reasonable care increased the risk of the harm he undertook to prevent, it may from this fact find a 'probability' that defendant’s negligence was the cause of the damage"); Jeanes v. Milner, 428 F.2d 598, 604 (8th Cir.1970) (applying Ark. law) (" ’[i]t is not required in a case of this kind that the injured party show to a mathematical certainty or to the exclusion of every other hypothesis that his injury occurred as a result of the negligence of which he complains' ”); Sharp v. Kaiser Found. Health Plan, 710 P.2d 1153, 1156 (Colo.App.1985) ("[ejven though plaintiffs’ evidence shows that Mrs. Sharp had less than a 50% chance of suffering a heart attack, her expert’s testimony that her chances of suffering a heart attack were increased by 20 to 25% is sufficient evidence of causation in fact to allow a jury to consider whether defendant’s failure properly to treat Mrs. Sharp was a substantial factor in causing her injuries”), aff’d on narrower grounds, Kaiser Found. Health Plan v. Sharp, 741 P.2d 714 (Colo.1987); Richmond County Hosp. Authority Operating Univ. Hosp. v. Dickerson, 182 Ga.App. 601, 356 S.E.2d 548, 550 (1987) ("[pjroximate cause is not eliminated by merely by establishing by expert opinion that the patient had less than a fifty percent chance of survival had the negligence not occurred”); De-Burkarte v. Louvar, 393 N.W.2d 131, 136 (Iowa 1986) (“[wjhen a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization!;] [i]f there was any substantial possibility of survival and defendant has destroyed it, he is answerable”); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149, 160 (1984) ("the failure to obtain proper treatment increased Mr. Roberson's chances of dying from the heart attack from at 19% mortality rate to a 25% mortality rate”); Smith v. State Dept. of Health, 523 So.2d 815, 821 (La.1988) (”[t]he plaintiff need only show that the decedent had a chance of survival which was denied to her as a result of the defendant’s negligence”); Joudrey v. Nashoba Community Hosp., Inc., 32 Mass.App.Ct. 974, 592 N.E.2d 769, 772 (1992) (”[i]n cases in which a physician’s negligent conduct has *612caused a delay in the diagnosis of a patient’s cancer, proximate causation can be proved by expert evidence which shows ... that the patient 'would have had a much improved chance of survival or longer life if diagnosis and treatment meeting accepted standards of care had been appropriately initiated’ ”); Bell v. United States, 854 F.2d 881, 890 (6th Cir.1988) (applying Michigan law) ("the district court erred when it interpreted Michigan law as mandating proof of a probability of recovery which was greater than 50%”); see also Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824, 828 (1985) (”[w]e feel that including ‘loss of chance’ within causality recognizes the realities inherent in medical negligence litigation[;] [pleople who seek medical treatment are diseased or injured[;] [failure to diagnose or properly treat denies the opportunity to recover[;] [including this lost opportunity within the causality embrace gives recognition to a real loss consequence of medical failure”); Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589, 592 (1991) ("the best rationale supporting recovery in these circumstances is the loss of chance doctrine[;] [u]nder this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice"); Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398, 405-6 (1990) ("[ejvidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexisting condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result”); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508, 511 (1974) ("had Mrs. Kallenberg been properly treated with the indicated medication of choice, her blood pressure could have been kept under control, and she might have improved sufficiently, even after August 22, to undergo surgery and make a recovery”); Morrison v. Stallworth, 73 N.C.App. 196, 326 S.E.2d 387, 393 (1985) ("[w]e conclude that shortened life expectancy is a com-pensable element of damage”); McKellips v. Saint Francis Hosp., 741 P.2d 467, 474 (Okla.1987) ("where a health care provider deprives a patient of a significant chance of recovery by negligently failing to provide medical treatment, the health care professional should not be allowed to come in after the fact and allege that the result was inevitable inasmuch as that person put the patient’s chance beyond the possibility of realization”); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1288 (1978) ("once a plaintiff has demonstrated that defendant's acts or omissions ... have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm”); Rosario v. Am. Export-Isbrandtsen Lines, Inc., 395 F.Supp. 1192, 1210 (E.D.Pa.1975) (applying Puerto Rico law) ("[i]t is enough ... if the plaintiff shows a substantial possibility of avoiding the ultimate harm, and ... the negligence complained of eliminated this possibility”) rev’d on other grounds, 531 F.2d 1227 (3d Cir.), cert denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Voegeli v. Lewis, 568 F.2d 89, 94 (8th Cir.1977) (applying S.D. law) ("[i]n this case it was necessary to prove by a preponderance of the evidence that Dr. Lewis’ negligence operated substantially to reduce the chances of saving the leg”); Truan v. Smith, 578 S.W.2d 73, 76 (Tenn.1979) ("had the cancer been treated before that dated, Mrs. Smith’s chances of either remission or recovery would have materially increased”); George v. LDS Hosp., 797 P.2d 1117, 1122 (Utah App.1990) (“[a] jury could have reasonably concluded that the failure of the nurses to notify Dr. Lloyd or Dr. Lahey of Mrs. George’s change in condition prevented them from diagnosing, treating, and possibly saving her life and that this failure therefore was a proximate cause of her worsened condition and ensuing death”); Blondel v. Hayes, 241 Va. 467, 403 S.E.2d 340, 344 (1991) (" ’[i]f there was any substantial possibility of survival and the defendant has destroyed it, he is answerable’ ”); Herskovits v. Group Health Coop, 99 Wash.2d 609, 664 P.2d 474, 478 (1983) (”[i]t is not necessary for a plaintiff to introduce evidence to establish that the negligence resulted in the injury or death, but simply that the negligence increased the risk of injury or death"); Snead v. United States, 595 F.Supp. 658, 665 (D.D.C.1984) (”[i]n cases involving alleged medical mismanagement of a patient's existing and potentially fatal condition, the appropriate test for causation is the 'substantial factor’ test”).
An additional measure of the rapid trend toward recognition of the "loss of chance” doctrine is the extent of the attention it has received in legal journals and other legal publications in the last 10 years. One recent American Law Reports annotation, for example, devotes over 135 pages to an analysis of damages in such cases. See Annotation, Medical Malpractice: Measure and Elements of Damages in Actions Based on Loss of Chance, 81 A.L.R.4th 485 (1990). See also, Annotation, Medical Malpractice: “Loss of Chance" Causality, 54 A.L.R.4th 10 (1987); Annotation, Recovery in Death Action for Failure to Diagnose Incurable Disease Which Caused Death, 64 A.L.R. 4th 1232 (1988); Damages for Loss of Chance of Cure, 12 Am.Jur. Proof of Facts 3d (1991). For comment in addition to the articles cited in the majority opinion, see Andel, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepper-dine L.Rev. 973 (1985); Smith, Increased Risk of Harm: A New Standard for Sufficiency of Evidence of Causation in Medical Malpractice Cases, 65 B.U.L.Rev. 275 (1985); Roubik, Recovery for "Loss of Chance” in a Wrongful Death Action, 59 Wash.L.Rev. 981 (1984); Wolfstone, Recovery of Damages for the Loss of a Chance, 1982 Med. Trial Tech. Q. 121.
. Rosenblum, Malpractice Solutions (Whittle Direct Books, 1993), at 62. The statistics are taken from claims filed in a two-year period with St. Paul Fire and Marine Insurance Co., the nation's largest private medical liability insurer.