80. In what type of jurisdiction would the wife's suit most likely be successful?

The issue in this question is liability for the loss of the chance of survival. Normally, a plaintiff in a negligence action must establish that the defendant's actions were the factual cause of the harm suffered. Often, that test is met by asking: if, but-for the defendant's actions, would the plaintiff's harm have occurred? That analysis is problematic where the victim is already likely to suffer the harm (such as here, where even if the hospital diagnosed his condition, his chance of survival was 50% or less). Jurisdictions that allow recovery for the loss of the chance of survival have created an exception to the traditional common law rules for establishing cause in fact.

C is correct. Under the traditional rules, the wife would be required to prove that reasonable action on the part of the hospital (presumably a correct diagnosis) would, more likely than not, have led to the man's survival. Here, the wife cannot establish that the chances of the man's survival would have been greater than 50% even if he had been given appropriate medical care. A jurisdiction that allows recovery for loss of the chance of survival, however, would allow the wife to recover for the reduction in her husband's chance of surviving that was caused by the failure to properly diagnose.

A is incorrect. This answer choice is the reverse of the type of jurisdiction that the wife desires for this claim. As described above, traditional common law rules concerning burden of proof require proof that reasonable action on the part of the defendant would more likely than not have led to the decedent's survival. Here, however, the wife cannot establish that the chances of the man's survival would have been greater than 50% even if he had been given appropriate medical care. Therefore, the wife could not carry her burden of proof of showing that the defendant hospital acting as a reasonable person would more likely than not have led to the man's survival and the claim would fail in such a jurisdiction.

B is incorrect. Even in a strict liability jurisdiction, the wife would still have to establish that the hospital's failure was the factual cause of the husband's death, but because the man already had a 50%-or-lower chance of survival, she could not do that. Further, the traditional types of strict liability involve abnormally dangerous activities, wild animals, and strict product liability. The facts do not indicate any of those theories would apply to the man's death even if the jurisdiction applied strict liability principles.

D is incorrect. In a loss of consortium action, the wife must establish that the hospital's negligence was the cause of her husband's death. Traditional rules of proof regarding causation would require that the wife prove that reasonable action on the part of the hospital (presumably a correct diagnosis) would, more likely than not, have led to her husband's survival. Here, the wife cannot establish that the chances of her husband's survival would have been greater than 50% even if he had been given appropriate medical care. Therefore, the wife could not carry her burden of proof on the issue of cause in fact in such a jurisdiction and she could not recover for loss of spousal consortium.