“Loss of Chance” Ruling in Massachusetts

The Massachusetts Supreme Judicial Court  has handed down a decision which, according to malpractice lawyers, will help patients who before the decision would  have had  little chance of collecting from doctors.

The ruling came about in a case where the patient, Kimiyoshi Matsuyama, 46 years old, had complained to the doctor about stomach pains.  He was diagnosed and treated for GERD, gastrointestinal reflux disease.  Diagnostic testing was never done until four  years later and the patient was found to have gastric cancer and died  five months after diagnosis. A Norfolk Superior Court jury had awarded his family a one million dollar judgement against his doctor, Dr. Neil Birnbaum and Dr. Birnbaum appealed.

The SJC recognized for the first time a doctrine known in medical malpractice cases as “loss of chance,” which allows a patient whose odds of recovery are 50 percent or less to receive damages for any negligence that reduced those odds. The court established a formula for juries to award damages proportionate to the reduced survival rate caused by the doctor’s negligence.

“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 said in a decision written by Chief Justice Margaret Marshall.