Verdicts

Loss of Chance Actionable Even When Death Already Likely

The Supreme Judicial Court of Massachusetts has ruled that doctors can be held liable for negligence that leads to a patient's loss of chance to recover, even when the patient's chances of survival already were below the 50% mark. Matsuyama v. Birnbaum, 452 Mass. 1, — N.E.2d —-, 2008 WL 2807476 (Mass.,7/23/08).

The Matsuyama plaintiff accused a primary care physician of misdiagnosing a patient's cancer, thus delaying for years his discovery of the condition. By the time plaintiff's deceased found out he had cancer, it was too late to save him. His estate brought suit for, among other things, medical malpractice and wrongful death. Plaintiff's expert told the jury that if the doctor had ordered appropriate testing in 1995, the cancer “would have been diagnosed” and “treated in a timely fashion when it might still have been curable.” The jury awarded damages for loss of chance, which they calculated as follows: They awarded $875,000 as “full” wrongful death damages. They then found that the deceased was suffering from Stage II cancer at the time of the doctor's initial negligence and had a 37.5% chance of survival at that time. They therefore awarded the plaintiff “final” loss-of-chance damages of $328,125 ($875,000 multiplied by .375).

The question on appeal as to whether this type of award was proper sent the Supreme Judicial Court to other states' court decisions for guidance. The court noted that the doctrine of loss of chance originated in dissatisfaction with the “all or nothing” rule of tort recovery (See generally King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, Yale L.J. 1353, 1365-1366 (1981) (King I)), under which a plaintiff may recover damages only by showing that the defendant's negligence more likely than not caused the ultimate outcome, in this case the patient's death; if the plaintiff meets this burden, the plaintiff then recovers 100% of his damages. Thus, if a patient had a 51% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the estate is awarded full wrongful death damages. Conversely, if a patient had a 49% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the plaintiff receives nothing. So long as the patient's chance of survival before the physician's negligence was less than even, it is logically impossible under traditional tort law for him to show that the physician's negligence was the but-for cause of his death; therefore, he can recover nothing. “Thus,” stated the court, “the all or nothing rule provides a 'blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.' Herskovits v. Group Health Coop. Of Puget Sound, 99 Wash.2d 609 (1983).”

Even conceding that in a case involving loss of chance, as in any other negligence context, a plaintiff must establish by a preponderance of the evidence that the defendant caused his injury, the court pointed out that such “injury” need not be a patient's death. “Although there are few certainties in medicine or in life, progress in medical science now makes it possible, at least with regard to certain medical conditions, to estimate a patient's probability of survival to a reasonable degree of medical certainty,” said the court. Here, the justices were referring to medical evaluations that can determine the possibility of recovery from a disease or injury. For example, experts could opine that a cancer in “Stage I” would be more amenable to cure than a cancer in the “Stage 3.”

Because courts can now ' thanks to advances in science ' count on the availability of reliable expert evidence on probabilities of survival, the Massachusetts Supreme Judicial Court determined it would now be appropriate to recognize loss of chance as a form of injury even though, in the past, such claims were not allowed in the State. Thus, the Supreme Judicial Court concluded that, in the limited areas of medical malpractice and wrongful death, the State of Massachusetts will recognize loss of chance as a basis for recovery in tort.

Jury Limits Damages Because They Won't Affect Hospital Enough

In an unusual move, a 12-member jury in Pennsylvania's Allegheny County Common Pleas Court awarded the estate of a deceased man $2.5 million in wrongful death damages, but declined to award any survival damages because, stated the jury, “no amount of damages will actually punish” the hospital. Rettger v. University of Pittsburgh Medical Center at Shadyide, Allegheny County Common Pleas Court, 5/23/08.

The jury found that the hospital fell below the standard of care, causing 24-year-old patient Michael Rettger to die of a brain abscess that was not treated in time. Instead of awarding any damages for things such as lost future income, however, the jury found the hospital's actions so egregious that it apparently could do nothing to make amends, including paying the decedent's survivors.

Plaintiff's attorneys are seeking a new trial, limited to damages under the Survival Act because, they believe the $0 survival damages the jury awarded is against the weight of the evidence.

Loss of Chance Actionable Even When Death Already Likely

The Supreme Judicial Court of Massachusetts has ruled that doctors can be held liable for negligence that leads to a patient's loss of chance to recover, even when the patient's chances of survival already were below the 50% mark. Matsuyama v. Birnbaum , 452 Mass. 1, — N.E.2d —-, 2008 WL 2807476 (Mass.,7/23/08).

The Matsuyama plaintiff accused a primary care physician of misdiagnosing a patient's cancer, thus delaying for years his discovery of the condition. By the time plaintiff's deceased found out he had cancer, it was too late to save him. His estate brought suit for, among other things, medical malpractice and wrongful death. Plaintiff's expert told the jury that if the doctor had ordered appropriate testing in 1995, the cancer “would have been diagnosed” and “treated in a timely fashion when it might still have been curable.” The jury awarded damages for loss of chance, which they calculated as follows: They awarded $875,000 as “full” wrongful death damages. They then found that the deceased was suffering from Stage II cancer at the time of the doctor's initial negligence and had a 37.5% chance of survival at that time. They therefore awarded the plaintiff “final” loss-of-chance damages of $328,125 ($875,000 multiplied by .375).

The question on appeal as to whether this type of award was proper sent the Supreme Judicial Court to other states' court decisions for guidance. The court noted that the doctrine of loss of chance originated in dissatisfaction with the “all or nothing” rule of tort recovery (See generally King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, Yale L.J. 1353, 1365-1366 (1981) (King I)), under which a plaintiff may recover damages only by showing that the defendant's negligence more likely than not caused the ultimate outcome, in this case the patient's death; if the plaintiff meets this burden, the plaintiff then recovers 100% of his damages. Thus, if a patient had a 51% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the estate is awarded full wrongful death damages. Conversely, if a patient had a 49% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the plaintiff receives nothing. So long as the patient's chance of survival before the physician's negligence was less than even, it is logically impossible under traditional tort law for him to show that the physician's negligence was the but-for cause of his death; therefore, he can recover nothing. “Thus,” stated the court, “the all or nothing rule provides a 'blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.' Herskovits v. Group Health Coop. Of Puget Sound , 99 Wash.2d 609 (1983).”

Even conceding that in a case involving loss of chance, as in any other negligence context, a plaintiff must establish by a preponderance of the evidence that the defendant caused his injury, the court pointed out that such “injury” need not be a patient's death. “Although there are few certainties in medicine or in life, progress in medical science now makes it possible, at least with regard to certain medical conditions, to estimate a patient's probability of survival to a reasonable degree of medical certainty,” said the court. Here, the justices were referring to medical evaluations that can determine the possibility of recovery from a disease or injury. For example, experts could opine that a cancer in “Stage I” would be more amenable to cure than a cancer in the “Stage 3.”

Because courts can now ' thanks to advances in science ' count on the availability of reliable expert evidence on probabilities of survival, the Massachusetts Supreme Judicial Court determined it would now be appropriate to recognize loss of chance as a form of injury even though, in the past, such claims were not allowed in the State. Thus, the Supreme Judicial Court concluded that, in the limited areas of medical malpractice and wrongful death, the State of Massachusetts will recognize loss of chance as a basis for recovery in tort.

Jury Limits Damages Because They Won't Affect Hospital Enough

In an unusual move, a 12-member jury in Pennsylvania's Allegheny County Common Pleas Court awarded the estate of a deceased man $2.5 million in wrongful death damages, but declined to award any survival damages because, stated the jury, “no amount of damages will actually punish” the hospital. Rettger v. University of Pittsburgh Medical Center at Shadyide, Allegheny County Common Pleas Court, 5/23/08.

The jury found that the hospital fell below the standard of care, causing 24-year-old patient Michael Rettger to die of a brain abscess that was not treated in time. Instead of awarding any damages for things such as lost future income, however, the jury found the hospital's actions so egregious that it apparently could do nothing to make amends, including paying the decedent's survivors.

Plaintiff's attorneys are seeking a new trial, limited to damages under the Survival Act because, they believe the $0 survival damages the jury awarded is against the weight of the evidence.