Massachusetts Lawyer Blog

A new area of medical malpractice law has arrived in MA and it concerns what is known as the "Loss of Chance Doctrine." The Boston Globe's, Denise Lavoie, writes:

The state's highest court ruled yesterday that doctors can be held liable for negligence that reduces a patient's chance of survival, even if the patient's prospect for recovery was already less than 50 percent.

The Massachusetts Supreme Judicial Court (SJC), in a decision written by Chief Justice Margaret Marshall, held:

Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages...

The Court's opinion provides a 5 step method for awarding damages:

Deriving the damages for which the physician is liable will require the fact finder to undertake the following calculations:

• 1. The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute, G. L. c. 229, § 2, or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decedent's death or injury.

• 2. The fact finder must next calculate the patient's chance of survival or cure immediately preceding ("but for") the medical malpractice.

• 3. The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice.

• 4. The fact finder must then subtract the amount derived in step 3 from the amount derived in step 2.

• 5. The fact finder must then multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damages award for loss of chance.

EXAMPLE:

• Step 1. Suppose in a wrongful death case that a jury found, based on expert testimony and the facts of the case, that full wrongful death damages would be $600,000;

• Step 2. The patient had a 45% chance of survival prior to the medical malpractice;

• Step 3. The physician's tortious acts reduced the chances of survival to 15%'

• Step 4. The patient's chances of survival were reduced 30% (i.e., 45% minus 15%) due to the physician's malpractice; and

• Step 5. The patient's loss of chance damages would be $600,000 multiplied by 30%, for a total of $180,000.

See the full case, Robin K. Matsuyama, Executrix of the Estate of Kimiyoshi Matsuyama vs. Neil S. Birnbaum & Dedham Medical Associates, Inc.