Common criticisms from U.S. state courts rejecting the lost chance doctrine are that it represents a relaxation of the normal burden of proof, and that it represents a drastic shift in tort liability that would be best left up to state legislatures. The Supreme Court of Texas has further noted the risk of creating a slippery slope—if lost chance can be applied in the medical malpractice context, why should it not apply to a legal malpractice plaintiff's claim of a lost chance of victory at trial due to poor lawyering, or perhaps an entrepreneur's lost chance of success for a new failed business due to the actions of another?
Common criticisms from U.S. state courts in rejecting the lost chance doctrine are that it represents a decrease in the normal burden of proof, and that it represents a significant shift in tort liability that would be best left to be decided by state legislatures. The Supreme Court of Texas has further noted the risk of creating an unstable precedent—if lost chance can be applied in medical malpractice cases, why should it not also apply to legal malpractice plaintiffs' claims of a lost chance of victory at trial due to poor representation, or perhaps entrepreneurs' lost chances of success for new failed businesses due to another party's actions?