Summary
The Massachusetts Supreme Judicial Court held that Massachusetts law permits recovery for loss of chance in a medical malpractice wrongful death action, including when the decedent had less than an even chance of survival before the physician's negligence. The court characterized loss of chance as a theory of injury rather than a modified causation standard, requiring plaintiffs to prove by a preponderance of the evidence that the negligence diminished the likelihood of a more favorable medical outcome. The court affirmed the judgment recognizing the decedent's loss of chance damages.
Topics
Practice areas
Questions Presented
- Whether Massachusetts law recognizes loss of chance as a compensable injury in a medical malpractice action when the patient's pre-negligence chance of survival was less than even.
- Whether a loss-of-chance claim may be brought under the Massachusetts wrongful death statute.
- Whether recognizing loss of chance alters the plaintiff's burden to prove causation by a preponderance of the evidence.
- What method should be used to calculate damages for loss of chance.
- Whether the evidence supported the jury's loss-of-chance verdict.
- Whether the jury instructions on causation, valuation, and gross negligence required reversal.
Holdings
- Massachusetts recognizes loss of chance as a compensable injury in medical malpractice actions, including when the patient's chance of survival before the negligence was less than fifty percent.
- A plaintiff in a loss-of-chance case must prove by a preponderance of the evidence that the physician's negligence caused the diminished likelihood of a more favorable medical outcome; the doctrine does not dilute or eliminate the ordinary causation burden.
- A claim for loss of chance of survival is cognizable under Massachusetts General Laws chapter 229, sections 2 and 6, because Massachusetts wrongful death law is common-law in origin and continues to evolve.
- Loss-of-chance damages must be calculated proportionally by multiplying the full damages allowable for the death or injury by the percentage reduction in the patient's chance of survival or cure caused by the defendant's negligence.
- The evidence supported the jury's findings that Birnbaum breached the standard of care and caused a diminution in Matsuyama's chance of survival. Although the single-defendant loss-of-chance causation test is but-for causation as to the lost chance, the substantial-contributing-factor instruction did not prejudice the defendants in this case.
- The trial judge's failure to instruct the jury to calculate the patient's post-negligence chance of survival and subtract it from the pre-negligence chance was error, but reversal was not warranted because the defendants failed to make a specific objection and waived the issue.
Key quotations
“Thus we recognize loss of chance not as a theory of causation, but as a theory of injury.” (at 16)
“In order to prove loss of chance, a plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s likelihood of achieving a more favorable outcome to be diminished.” (at 17)
“The fact finder must next calculate the patient’s chance of survival or cure immediately preceding (“but for”) the medical malpractice.” (at 27)
“The loss of chance damages would be $600,000 multiplied by 30% for a total of $180,000.” (at 28)
Factual background
Kimiyoshi Matsuyama presented to Dr. Birnbaum beginning in 1995 with gastric symptoms and significant risk factors for gastric cancer, including Asian ancestry, residence in Japan and Korea, smoking history, and later a positive H. pylori test. Birnbaum repeatedly treated the symptoms without ordering gastrointestinal testing or endoscopy with biopsy until 1999, when testing revealed advanced gastric cancer. Matsuyama died several months later. The jury credited expert testimony that earlier testing and treatment would have given Matsuyama a greater chance of survival and found Birnbaum negligent, with the negligence causing a diminished chance of a more favorable outcome.
Procedural history
The plaintiff sued Dr. Neil S. Birnbaum and Dedham Medical Associates, Inc., asserting wrongful death, negligence, breach of contract, informed-consent, and conscious-pain-and-suffering claims. The Superior Court dismissed the contract and informed-consent claims, submitted negligence, wrongful death, loss-of-chance, conscious-pain-and-suffering, and gross-negligence issues to the jury, and entered judgment for the plaintiff. The jury found negligence and loss-of-chance liability, awarded loss-of-chance and conscious-pain-and-suffering damages, and found no gross negligence. The defendants appealed, challenging the cognizability of loss-of-chance damages, the wrongful-death statute, causation, damages instructions, and the gross-negligence instruction.