"Loss of chance" medical lawsuits

According to the Massachusetts Supreme Court, physicians can be held liable for doctor malpractice even when a patient's chances of survival is slim in the first place. The is the first time ever that the state's Supreme Court recognized “loss of chance” that in effect allows more plaintiffs to seek damages.

In the past, Massachusetts allowed medical lawsuits or doctor malpractice lawsuits only when patients had better-than-even chances of surviving. What this meant was that the rule protected doctors from any doctor malpractice liability whenever a patient's chances of survival has gone under 50 percent, said Chief Justice Margaret Marshall in a unanimous opinion.

“The loss-of-chance doctrine views a person's prospects for surviving as something of value, even if the possibility of recovery was less than even. Where a physician's negligence reduces or eliminates the prospects for a more favorable medical outcome, the physician has harmed the patient and is liable for damages,” Chief Justice Marshall added.

Already, there are about 20 states that permit loss-of-chance lawsuits, as noted by Chief Justice Marshal. Legal experts believe that her ruling will have a great impact on other courts.

The is a case involving the estate of Kimiyoshi Matsuyama. Matsuyama, who, at age 46, died of gastric cancer, repeatedly consulted an internist about stomach pains. The internist recommended OTC remedies for GI reflux disease but didn't order diagnostic tests or refer the patient to a specialist until May 1999. At that point, Matsuyama was diagnosed with advanced infiltrative gastric adenoid carcinoma. He died five months later.

A trial jury awarded Matsuyama's wife and son damages totaling just over $1 million, including more than $300,000 for “loss of chance.” During their deliberations, the jury set $875,000 as overall compensation for the wrongful death. Calculating that Matsuyama's chance of survival had been 37.5 percent when he first consulted the doctor, jurors awarded $328,125 -- or 37.5 percent of $875,000 -- specifically as “loss-of-chance damages.”

Noting that negligence clearly contributed to loss of chance, the supreme court upheld their reasoning.