"Loss of chance" doctrine changes malpractice standards

May 8, 2009

The loss-of-chance doctrine provides that even if a patient had less than a 50-50 chance of a full recovery at the time of a physician's negligent act, it is a compensable injury if that negligence deprived the patient of any chance of recovery.

Key Points

Now, Massachusetts, in the case of Matsuyama v. Birnbaum, has joined 20 other states in applying what is called the "loss of chance" doctrine. It provides that a plaintiff is not required to prove that a physician's negligence caused the patient's death, but only that the negligence caused a loss of a chance of recovery.

The loss-of-chance doctrine provides that even if a patient had less than a 50-50 chance of a full recovery at the time of a physician's negligent act, it is a compensable injury if that negligence deprived the patient of any chance of recovery.

This loss-of-chance approach is a departure from the conventional "all or nothing" methodology. Under traditional malpractice law, if a jury is satisfied that a physician's negligence probably (greater than 50 percent likelihood) caused the death of a patient, the patient would be awarded damages for what he would have earned during his entire life expectancy. If, however, the jury determines that there is no more than a 49 percent chance that the malpractice caused the patient's death, the patient receives nothing. In effect, the loss-of-chance doctrine changes the definition of "damages."

The Massachusetts Supreme Court uses a "proportionality" approach to determine the measure of damages. The first step is to determine what the damages would have been had the patient reached his full life expectancy. The jury then determines what the patient's chances of survival were at the time of the physician's negligence, then subtracts from that what the patient's chances of survival were at the time the correct diagnosis was made.

For example, say a jury concludes that a patient had a 45 percent chance of survival at the time the physician should have diagnosed cancer, but only a 20 percent chance of survival when the cancer was ultimately diagnosed. The difference of 25 percent would be multiplied by the amount that would have been awarded for the patient's full life expectancy to determine the applicable damages.

What impact the adoption of a loss-of-chance law will have remains unknown. While there may be some additional plaintiff verdicts that would not have occurred under the all-or-nothing approach, those verdicts may result in a reduction of the award that might have been received if the jury did not have the option of awarding damages for loss of a chance.

The author is a health law attorney with Adelman, Sheff & Smith in Annapolis, Maryland, and Washington, D.C. He can be reached at aadelman@hospitallaw.com
. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
.