Tort Law - Loss of a Chance Doctrine - Massachusetts Supreme Judicial Court Accepts Loss of a Chance in Medical Malpractice Suits

Harvard Law Review, February 2009 | Go to article overview

Tort Law - Loss of a Chance Doctrine - Massachusetts Supreme Judicial Court Accepts Loss of a Chance in Medical Malpractice Suits


TORT LAW--LOSS OF A CHANCE DOCTRINE--MASSACHUSETTS SUPREME JUDICIAL COURT ACCEPTS LOSS OF A CHANCE IN MEDICAL MALPRACTICE SUITS.--Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008).

Negligence plaintiffs must generally demonstrate by a preponderance of the evidence that the defendant's conduct actually caused their injuries. (1) This principle of but-for causation, combined with judicial reluctance to recognize losing a chance as an injury, plays a potentially troubling role in some medical malpractice cases. Given a patient whose condition gives her a less than even chance of survival notwithstanding careful treatment, any carelessness on the doctor's part will not give rise to a viable suit because her estate cannot establish but-for causation--more likely than not she would have died anyway. Spurred by commentators and considerations of fairness and efficiency, many states have adopted "loss of a chance" theories to allow plaintiffs some recovery under these unfortunate circumstances. (2) These theories give patients a recovery proportional to the diminution of their chances of survival. Recently, in Matsuyama v. Birnbaum, (3) the Massachusetts Supreme Judicial Court recognized a version of loss of a chance, suggesting several factors that make loss of a chance appropriate in the medical malpractice context. But the court did not offer a coherent theory of why these factors should all be required before extending loss of a chance, and the factors taken individually suggest different conceptions of the doctrine's proper scope. This leaves lower courts the difficult task of determining which factors to emphasize and which to deemphasize in deciding on the proper scope of loss of a chance. They can best accomplish this task by emphasizing the narrow relationship-focused factors Matsuyama discussed.

Kimiyoshi Matsuyama died of stomach cancer that went undetected despite numerous visits to his doctor. (4) During these visits Matsuyama generally exhibited increasingly severe symptoms of stomach cancer: heartburn, difficulty breathing while eating, severe stomach pain, the appearance of cancer-indicative moles, and elevated levels of cancer-indicative bacteria. (5) After five visits and almost four years, Matsuyama's physician finally ordered the ultrasound that would show that he had stomach cancer. (6) He died only five months later. (7)

The following June, Matsuyama's widow, as executrix, brought suit against Dr. Neil Birnbaum, Matsuyama's primary physician. (8) Based on expert testimony about chances of survival at various stages of stomach cancer, the jury found that Matsuyama had a 37.5% chance of survival at the time of Birnbaum's initial carelessness (9) and that Birnbaum's carelessness was a "substantial contributing factor" in Matsuyama's death. (10) Multiplying Matsuyama's damages by 37.5%, the jury awarded his widow and child $328,125. (11)

On appeal, the Massachusetts Supreme Judicial Court unanimously affirmed, (12) holding this version of the loss of a chance doctrine compatible with the "fundamental aims" of its tort law: loss-sharing, deterrence, and compensation. (13) The court began by noting the inefficiency and injustice of the traditional causation rule, stating that "[i]t fails to provide the proper incentives to ensure that the care patients receive does not slip below the 'standard of care and skill of the average member of the profession'" (14) and fails "to ensure that victims, who incur the real harm of losing their opportunity for a better outcome, are fairly compensated." (15) The court then "delineat[ed] the proper shape of the doctrine" by responding to standard critiques of it. (16) To the claim that loss of a chance diluted traditional causation principles, the court responded that a proper understanding of the injury in loss of a chance cases eliminates this difficulty. By recognizing the loss of a chance itself as the injury, the traditional causation principles still apply, but rather than needing to prove that the physician's lack of care caused death, a claimant can prove liability by showing that the physician's carelessness caused "the diminished likelihood of achieving a more favorable medical outcome. …

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