It is common knowledge … that the failure of schools to achieve educational objectives has reached massive proportions. It is widely recognizes [sic] that, as a result, not only are many persons deprived of the learning that both materially and spiritually enhances life, but also that society as a whole is beset by social and moral problems. These changed circumstances mandate a change in the common law.

Over the last thirty years, frustrated parents have increasingly brought claims within the legal system for educational misconduct. Finding that administrative remedies do not adequately compensate such injuries as illiteracy, misdiagnoses of learning disabilities, and failure to educate in appropriate environments, plaintiffs have tried to hold educators accountable through malpractice suits similar to legal or medical malpractice suits.2 The legal theory of malpractice holds professionals who injure others liable for their negligence if the injury was proximately caused by a failure to exercise the accepted standard of care of their profession.

Despite compelling tales of injury from negligent educators, there have been only two educational malpractice cases that have survived summary judgment since the cause of action first surfaced in the 1970s.4 In fact, alleging “educational malpractice” in the pleadings invariably leads to a dismissal of the claim because courts almost uniformly refuse to recognize this tort.5 While the number of medical and legal malpractice cases have soared, only one state-Montana-has included education among the professions liable for malpractice. In short, educational malpractice has become “a tort theory beloved of commentators, but not of courts.”

The bases upon which courts decline to recognize educational malpractice claims revolve around several factors that courts have held are relevant to determining whether a judicial recognition of a duty of care on the part of an educator is sound public policy. The factors relevant to determining that an educator owes a duty of care towards a student, as a matter of sound public policy, fall into four general categories: preventative concerns (including establishing a standard of care, causation, and injury); moral concerns; economic issues; and administrative considerations.8 Courts have repeatedly held that these factors preclude an educational malpractice action despite a severe crisis in the field of education and a growing consensus among commentators that malpractice claims should be allowed as a means to reform the system.9 One consideration under the “preventative concerns” factor has surfaced in most court opinions as a major obstacle to educational malpractice liability.10 This is the proximate cause element of the tort of negligence.

After it has been determined that the defendant’s actions are in fact12 one cause of the plaintiff’s injury, the question becomes whether the defendant should be held legally liable for the injury.13 This issue of proximate cause is framed by the question, “was the defendant under a duty to protect the plaintiff against the event which did in fact occur?”14 As applied to educational malpractice, the relevant question is whether an educator is under a duty to protect a student against illiteracy, misdiagnosis, or other educational injury. On the issue of meeting the proximate cause element of educational malpractice, one court has stated:

The “injury” claimed here is plaintiffs inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process .. . . They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified …. We find in this situation no conceivable . . . “connection between the defendant’s conduct and the injury suffered,” as alleged, which would establish a causal link between them within the same meaning.

Extracurricular factors that underlie an educational injury, however, should not preclude an award for injuries that are proximately caused by the educator. In medical malpractice cases, there are several situations where the plaintiff will not be able to meet the burden of showing the doctor’s conduct more likely than not proximately caused an injury. One of these situations is where a patient has a preexisting medical condition. The loss of chance doctrine has evolved before a number of courts as a means to assist plaintiffs in cases in which a doctor’s negligence injures a patient with a preexisting condition by reducing the patient’s likelihood of recovering from that preexisting condition. Likewise, courts could adopt the loss of chance doctrine to help educational malpractice plaintiffs in cases for which it cannot be shown that the educator more likely than not caused an injury by reducing the chance that a student will “recover” from or overcome a preexisting physical, neurological, emotional, or environmental condition. This Note argues for the expansion of the lost chance doctrine to educational malpractice claims in order to overcome causation and damages obstacles that make courts reluctant to recognize the cause of action.