Dumas

—In a medical malpractice action predicated upon delayed diagnosis and treatment of lung cancer, the jury rendered a verdict in favor of plaintiff Kenneth Dumas and against defendants David Cooney, M.D. and Alfred Spivack, M.D. It awarded plaintiff damages of $321,400. The trial court entered judgment accordingly, and defendants appeal. Defendants contend that the trial court erred by instructing the jury on the theory of lost chance. We agree and conclude that the error was prejudicial. We therefore reverse the judgment and remand for a new trial.

Background

In 1986, following an annual physical examination, Dr. Spivack diagnosed lung cancer in plaintiff. A surgeon then removed a tumor and part of plaintiff’s right lung. Plaintiff underwent treatment, but the disease recurred in May 1989. Plaintiff died on November 26, 1989, six days after the jury rendered its verdict.

Plaintiff’s theory at trial was that defendants, who were partners, negligently failed to diagnose his cancer in 1984. In September of that year, plaintiff was treated by Dr. Cooney for a separate illness and referred to a radiologist for a chest X-ray. The radiologist reported to defendants that there…