dissenting.
Because the Court fails to join the majority of other states that have addressed this issue and allow an injured party to recover for loss of chance in medical malpractice actions, I dissent.
As the Court concedes, at least sixteen states have abandoned its “all or nothing” *408approach in favor of some version of the loss of chance doctrine.1 While these courts have not all applied the doctrine in the same way, they permit some type of recovery for individuals whose lives are damaged by medical negligence but who cannot meet the arbitrary standard advocated by the Court. Under the Court’s approach, only if a plaintiff can establish that she was negligently deprived of a *409greater-than-even chance of avoiding the ultimate death or condition can she recover all damages resulting from that outcome, but if she can show the loss only of some smaller chance, she can recover nothing. See, e.g., Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 BayloR L.Rev. 759, 778 (1992). This just does not make sense. This “all or nothing” approach, as the Kansas Supreme Court pointed out, effectively
[Djeclares open season on critically ill or injured persons as care providers would be free of even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale, a segment of society often least able to exercise independent judgment would be at the mercy of those professionals on whom it must rely for lifesaving health care.
Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149, 154 (1984).
The “all or nothing” approach further undermines the deterrence and loss allocation functions of tort law. While in a given case the negligent deprivation of a less than even chance may not be the cause in fact of the ultimate illness or death, in many such cases, the defendant’s negligence causes statistically demonstrable losses. The all or nothing approach thus fails to allocate the cost of these losses to their tortious causes. Jim Perdue, Recovery for Lost Chance of Survival: When the Doctor Gambles, Who Puts Up the Stakes, 28 S. Tex.L.Rev. 37, 46 (1987). Additionally, the all or nothing approach gives this particular class of defendants the benefit of an uncertainty created by their own negligence. Because of the defendant’s negligence, it can never be known whether the plaintiff would have recovered his health in the absence of that negligence.
Finally, the “all or nothing” approach is contrary to the concept that a chance of a future benefit is a legally compensable interest. At least one Texas court has accepted the notion that “the chance which a competitor has of being awarded a prize ... is a right which may be of value, and that one wrongfully impairing or destroying such right ought to be held liable therefor in damages.” Kansas City, M. & O. Ry, v. Bell, 197 S.W. 322, 323 (Tex.Civ.App.—Amarillo 1917, no writ). Logically, the same rule should apply to the loss of a chance to avoid harm as applies to the loss of a chance to acquire a benefit. Joseph King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1378 (1981). The Bell case recognized a cause of action for a lost chance to enter a hog competition. Since Texas law has allowed recovery for this lost chance, surely it should accord similar rights to a woman’s lost chance of surviving cervical cancer. Unfortunately, while the Court recognizes this inconsistency, it chooses to lower the protection for hogs rather than to raise the protection for humans.
I would adopt the “separate injury” version of the loss of chance doctrine, under which the harm to be compensated would be the loss of the chance of recovery, rather than the injury or death which ultimately ensues. In other words, I believe the harm to be redressed is the loss of chance of survival, however small, instead of the Court’s position that the only harm that can be redressed is the ultimate death of the patient.2 Thus, a loss of chance plaintiff would have to prove by the familiar standard of reasonable medical probability that the defendant’s negligence caused the loss of the chance of improved health.
*410Having adopted the loss of chance approach to causation in medical malpractice cases, I would adopt the jury valuation approach for determining damages.3 This approach leaves the assessment of lost chance damages to the discretion of the jury “based on evidence of the plaintiffs lost opportunity for recovery or survival and factors pertinent to the individual plaintiffs circumstances.”4 King, 90 Yale L.J. at 1378. Under this approach, the jury may consider such factors as the physical and mental pain and anguish that accompany the lost chance of improved health, as well as other physical losses and consequential damages, including medical costs. Perdue, 28 S. Tex.L.Rev. at 62. While a defendant in a lost chance case should no more be liable for the entirety of a plaintiffs pain and suffering or medical expense damages than a defendant adjudicated comparatively but not solely negligent in an ordinary tort case, juries are very capable of weighing these considerations and determining the amount of damages in these cases.
Finally, adoption of the loss of chance doctrine would not lead to wholesale changes in all areas of law. The State of Washington, for example, explicitly rejected the application of the loss of chance doctrine outside of medical malpractice cases. See Daugert v. Pappas, 104 Wash.2d 254, 704 P.2d 600 (1985). Other courts have limited the doctrine even further. See McKellips v. Saint Francis Hasp., 741 P.2d 467, 474-75 (Okla.1987) (“a limited type of medical malpractice case where the duty breached was one imposed to prevent the type of harm which a patient ultimately sustains and because of the inherent nature of such a case a plaintiff is unable to produce evidence of causation sufficient to meet the traditional rule of causation”); Thompson v. Sun City Community Hosp., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984) (“this rule fits only in those situations where the courts traditionally have allowed juries to deal more loosely with causation — the cases where the duty breached was one imposed to prevent the type of harm sustained”).
In this case, the jury should have had the opportunity to determine whether the negligence of the physicians in failing to diagnose Ms. Kramer’s cervical cancer deprived her of a chance of survival.5 In sum, I would join the majority of other states that have addressed this issue and allow an injured party to recover for loss of chance. Because the Court fails to do so, I respectfully dissent.
DOGGETT and GAMMAGE, JJ., join in this dissent.
. The history of the loss of chance doctrine shows the trend towards its general acceptance. While the doctrine was first recognized in the context of maritime "man overboard” cases, see, e.g., Gardner v. Nat’l Bulk Carriers, Inc., 310 F.2d 284, 287 (4th Cir.1962), the first sign that the doctrine might be applied in the medical malpractice context came in Hicks v. United States, 368 F.2d 626 (4th Cir.1966) ("If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable”); see also Whitfield v. Whittaker Memorial Hosp., 169 S.E.2d 563, 569 (Va.1969).
State courts, however, were slow to abandon the "all or nothing" approach until the landmark case of Herskovits v. Group Health Coop., 99 Wash.2d 609, 664 P.2d 474 (1983), in which the Washington Supreme Court became the first state supreme court expressly to embrace the lost chance concept in a case involving the loss of less than a 50 percent chance of survival. In that case the defendants' negligence resulted in a six-month delay in the correct diagnosis of decedent’s lung cancer; over the course of that six months the decedent’s chance of five-year survival dropped from 39 percent to 25 percent. 664 P.2d at 475. The court held that this loss of an additional 14 percent chance of survival was sufficient to warrant submission of the proximate cause issue to the jury. 664 P.2d at 479.
The following courts have adopted some form of recovery for loss of chance: Thompson v. Sun City Community Hosp., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984); Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455, 457 (1987); De-Burkarte v. Louvar, 393 N.W.2d 131, 137-38 (Iowa 1986); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149, 159-60 (1984); Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 720 (La.1986); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, 52-57 (1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 684-86 (Mo.1992) (en banc); Aasheim v. Humberger, 695 P.2d 824, 828 (Mont.1985); Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589, 592 (1991); Scafidi v. Seiler, 119 NJ. 93, 574 A.2d 398, 405-08 (1990); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508, 510-11 (1974), aff'd mem., 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128 (1975); McKellips v. Saint Francis Hosp., 741 P.2d 467, 474-77 (Okla.1987); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1288-89 (1978); Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440, 446 (1985); Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 664 P.2d 474, 477-49 (1983); Thornton v. CAMC, Etc., 172 W.Va. 360, 305 S.E.2d 316, 324-25 (1983); Ehlinger by Ehlinger v. Sipes, 155 Wis.2d 1, 454 N.W.2d 754, 759 (1990); see also Daniels v. Hadley Memorial Hosp., 566 F.2d 749, 757 (D.C.Cir.1977) (District of Columbia law); Richmond County Hosp. Auth. v. Dickerson, 182 Ga.App. 601, 356 S.E.2d 548, 550 (1987); McBride v. United States, 462 F.2d 72, 75 (9th Cir.1972) (Hawaii law); Shumaker v. United States, 714 F.Supp. 154, 164 (M.D.N.C.1988) (North Carolina law); Morales v. United States, 642 F.Supp. 269, 272 & n. 3 (D.P.R.1986) (Puerto Rico law); Voegeli v. Lewis, 568 F.2d 89, 94 (8th Cir.1977) (South Dakota law). But see Grody v. Tulin, 170 Conn. 443, 365 A.2d 1076, 1080 (Conn. 1976); Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015, 1019-20 (Fla.1984); Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 51-52, 830 P.2d 1185, 1189-90 (1992); Fennell v. Southern Maryland Hosp. Ctr., 320 Md. 776, 580 A.2d 206, 215 (1990); Ladner v. Campbell, 515 So.2d 882, 888-89 (Miss.1987); Clayton v. Thompson, 475 So.2d 439, 445 (Miss. 1985); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 512 A.2d 1126 (1986); Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97, 103 (1971); Sherer v. James, 290 S.C. 404, 351 S.E.2d 148, 150-51 (1986); see also Alfonso v. Lund, 783 F.2d 958 (10th Cir.1986) (New Mexico law); Bromme v. Pavitt, 5 Cal.App. 4th 1487, 7 Cal.Rptr.2d 608, 613-18 (1992); Dumas v. Cooney, 235 Cal.App.3d 1593, 1 Cal. Rptr.2d 584 (1991); Morgenroth v. Pacific Medical Ctr., 54 Cal.App.3d 521, 126 Cal.Rptr. 681, 688-89 (1976); La Bienic v. Baker, 11 Conn.App. 199, 526 A.2d 1341 (1987); Watson v. Medical Emergency Serv. Corp., 532 N.E.2d 1191, 1196 n. 2 (Ind.App.1989); Comfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn.1980); Joudrey v. Nashoba Community Hosp., Inc., 32 Mass.App.Ct. 974, 592 N.E.2d 769, 772 (1992).
In at least four other states, the law is unclear. See Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 718 (Colo.1987); compare Northern Trust Co. v. Louis A. Weiss Memorial Hosp., 143 Ill.App.3d 479, 97 Ill.Dec. 524, 493 N.E.2d 6, 11, 493 N.E.2d 6, 12 (1986) (suggesting loss of chance approach) with Russell v. Subbiah, 149 Ill.App.3d 268, 102 Ill.Dec. 516, 519, 500 N.E.2d 138, 141 (1986) (adhering to traditional principles of causation); compare Wiley v. Montgomery, 861 F.2d 145, 146-47 (6th Cir.1988) (Kentucky law) and Richard v. Adair Hosp. Found. Corp., 566 S.W.2d 791, 794 (Ky.App.1978) (suggesting loss of chance approach) with Walden v. Jones, 439 S.W.2d 571, 576 (Ky.App.1968) (adhering to traditional principles of causation); compare Truan v. Smith, 578 S.W.2d 73, 76 (Tenn.1979) with Boburka v. Adcock, 979 F.2d 424, 430-31 (6th Cir.1992) (holding that Tennessee law adheres to the traditional approach to causation) and Alessio v. Crook, 633 S.W.2d 770, 776 (Tenn.App.1982) (distinguishing Truan).
. Properly viewing the harm caused as the loss of chance rather than the patient’s death, it is unnecessary to analyze the applicability of the Texas Wrongful Death Act. Texas common law recognizes loss of consortium actions for negligent injury to the husband-wife or parent-child relationship. See Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978); Reagan v. Vaughn, 804 S.W.2d 463 (Tex.1990). I agree with the Court’s contention that there is no common law cause of action for loss of consortium in cases involving death separate from that which would fall under the Texas Wrongful Death Act. 858 S.W.2d at 410 n. 5. However, the Court mis-characterizes the injury to be redressed in this case. The injury causing the loss of consortium is not the victim’s death but the victim's loss of chance of survival. Therefore, a victim’s spouse and children could recover for loss of consortium damages flowing from the victim’s loss of chance.
.There are two methods of calculating the value of a lost chance, the “proportional damage" approach and the "jury valuation" approach. See Keith, 44 Baylor L.Rev. at 797-99. Under the proportional damage approach, the fact-finder determines the plaintiffs original chance of improved health and the plaintiffs chance after the defendant's negligence, as well as the total sum of damages which are ordinarily recoverable. The percentage reduction caused by the defendant is then multiplied by the total damages to determine the actual damages. I agree with critics of the proportional damage approach that it reduces the damage assessment to a "computer-like” calculation for the court to perform. See Perdue, 28 So. Tex.L.Rev. at 62-63.
The proportional damage approach places an inherent disincentive on plaintiffs who have lost only very slight chances of recovery, or who have suffered only very small reductions in their chances of improved health. Use of the percentage chance lost as a multiplier against the total damages suffered will lead to much smaller recoveries where the chance lost is small.
. In Kansas City, M. & O. Ry. v. Bell, 197 S.W. 322, 323 (Tex.Civ.App.—Amarillo 1917, no writ) the court left it “to the good sense of the jury trying the case to determine the value of the plaintiffs chance in the competition.” 197 S.W. at 323.
. The Court should address the controversies before it instead of extrapolating what results might be under different circumstances. I believe that there should be a cause of action for loss of chance for medical malpractice actions. When the Court is presented with the question of whether there should be a loss of chance cause of action for legal malpractice actions, I will be ready to answer it.