Mass. High Court: Doctors Liable for Patient’s Lessened Chance of Survival

By | July 24, 2008

The Massachusetts Supreme Judicial Court has ruled that physicians can be held liable in a wrongful death action when their negligence lessens a patient’s chance of survival.

The ruling, which for the first time upholds the “loss of chance” doctrine, came in an appeal of case where a jury found that a physician’s negligence deprived his patient of a less than even chance of surviving stomach cancer.

“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,” wrote Chief Justice Margaret Marshall.

The court said that permitting recovery for loss of chance is “particularly appropriate in the area of medical negligence” but added that the decision is limited to such claims.

The plaintiff in this case, Kimiyoshi Matsuyama, died of gastric cancer in 1999 at the age of 46. In 2004, a jury found that he had complained for several years to his physician, Dr. Neil Birnbaum, about stomach pains, but Birnbaum did not order diagnostic tests until May 1999. The testing supported a diagnosis of gastric cancer but Matsuyama died five months later.

The jury awarded $160,000 to his estate for pain and suffering caused by the physician’s negligence. It also awarded $328,125 to Matsuyama’s widow and son for the decedent’s loss of chance.

On appeal, the defendants claimed that the state’s wrongful death statute does not recognize loss of chance. Birnbaum’s lawyers also argued there was no evidence that the doctor’s actions contributed substantially to his patient’s death.

But the high court sided with the jury on the appeal, ruling that the loss of chance doctrine “views a person’s prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physician’s tortious conduct.”

According to the decision, “recognizing loss of chance in the limited domain of medical negligence advances the fundamental goals and principles of our tort law. ”

In a brief filed along with the case, a liability watchdog group expressed concern that a ruling in favor of the last chance doctrine could lead to higher malpractice insurance costs for doctors and hospitals.

The members of the organization, the Professional Liability Foundation, include the Massachusetts Medical Society, Baystate Health System, Caritas Christi Health Care System, the Massachusetts Hospital Association, the Tufts-New England Medical Center, ProMutual Group, and the Risk Management Foundation of the Harvard Medical Institutions Inc.

The case is Robin K. Matsuyama, executrix, vs. Neil S. Birnbaum & another.

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