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Under 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. Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine L. Rev. 973 (1985) (authored by Patricia L. Andel). Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. 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.” McKellips, 741 P.2d at 476.

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. In accord with other courts adopting this view, we need not now state exactly how high the chances of survival must be in order to be “substantial.” We will address this in the future on a case by case basis. There are limits, however, and we doubt that a ten percent chance of survival as referred to in the example in the dissenting opinion would be actionable. Survivors of a person who had a truly negligible chance of survival should not be allowed to bring a case fully through trial. Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will have little monetary incentive to bring a case to trial because damages would be drastically reduced to account for the preexisting condition.

Regardless of the insured’s intoxicated state, the act of striking another is intentional, that such an act is not a covered occurrence under the policy in question here, and that such incidents are subject to a properly drafted “intentional acts” exclusion clause. Consequently, we hold that the liability insurer in this instance is under no duty to defend or indemnify its insured in connection with an action seeking damages stemming from the insured’s intentional infliction of bodily injury, even when the insured was intoxicated or believed he acted in self-defense.

The insurance agreement in this case obligates State Farm to defend and indemnify the defendant in connection with actions brought against him for damages caused by an “occurrence.” The policy defines the term “occurrence” as an accident resulting in bodily injury. Although the policy does not define the term “accident,” a common definition of the term is “a happening that is not expected, foreseen, or intended.” In addition, the policy contains exclusionary language precluding coverage for bodily injury or property damage “(1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured.”

This court dealt with a similarly worded insurance policy. This court observed that “‘intent’ or ‘intention’ denotes a design or desire to cause the consequences of one’s acts and a belief that given consequences are substantially certain to result from the acts.” Applying this definition of intent, we concluded that a homeowner’s liability insurance policy did not cover the insured’s actions of fatally shooting his wife and two of her friends, despite a claim that the insured did not intend his actions because he acted in a psychotic fit of rage. We also noted that the insured’s “supposed inability to control his acts [was] not the same as an inability to intend his acts.”

We take this opportunity to extend our holding and reject appellants’ argument that the dependant was unable to act intentionally as a result of his voluntary intoxication. Whether he thought he was God or his evil master is of no matter because he admittedly struck the victim in the eye with the desire of getting away from him. This is a non-accidental intentional act even if he did not intend to harm him. Thus, we conclude that his act of striking the victim is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. In this, we recognize his claims that the intentional-acts exclusion does not apply because, given his advanced state of intoxication, he did not intend to injure the victim and that, because he believed he acted in self-defense, his conduct was not malicious. We reject this line of argument because the exclusion properly dovetails with the reasonable construction of the policy that an occurrence requires an accidental event. Accordingly, State Farm is not obligated to defend or indemnify the defendant  with respect to any judgment obtained against him by the victim.

Applying this court’s holding, we conclude that . . . notwithstanding the claim that he was too intoxicated to intend the acts and resulting injuries to [the victim], the intentional-act exclusionary clause applies to negate coverage.

Medical malpractice can be committed against you or a family member by any provider of health care and treatment including: anesthesiologist, hospital, clinic, psychiatrist, dentist, doctor, nurse or any other health care provider. In , the act of medical malpractice occurs when a  health care provider causes a patient to be injured because of the lack of skill and competence which is normally used to treat and care for a patient. The level of skill is known as the “standard of care.” A  medical malpractice complaint will allege that the actions of the health care provider fell below the required “standard of care” for that type of professional. This is another way of saying that the average professional (in that area of practice) would have known better and would not have committed the act which caused the injury.

A medical malpractice (Med-Mal) lawsuit usually requires an attorney to use several experts to prove that the health care professional did not meet the standard of care for that specific area of medical practice. A  medical malpractice claim is typically expensive to litigate because many experts are required to prove that the care of the patient was below the normal standard. Medical malpractice claims are subject to a statutory cap which limits certain types of damages available to patients. The high costs of using experts and the limit on certain damages may cause some  lawyers to take fewer medical malpractice cases as part of their personal injury law practice. An attorney may have an expert evaluate your case early in the process, so that both you and the attorney can learn whether a viable claim can be made against the negligent party.

If you or a member of your family sustained injuries because of the medical malpractice of a health care professional, you can get a free consultation an attorney of our law firm. We provide legal representation for residents throughout the area,