Massachusetts Supreme Court recognizes "loss of chance" recoveries in medical malpractice actions

This material originally appeared in the August 1, 2008, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association.

The Massachusetts Supreme Judicial Court has held plaintiffs asserting medical malpractice in wrongful death actions could recover for “loss of chance” where defendant physicians’ negligence reduced or eliminated their decedents’ prospects for achieving a more favorable medical outcome.

The high court addressed the “loss of chance” recovery issue in a pair of decisions issued on July 23.

In the decisions, the high court said medical advances have allowed experts to more reliably pinpoint statistical survival rates making it “appropriate to recognize loss of chance as a form of injury.”

The high court established the proportional damages approach as the appropriate measure of damages in such cases. Under this formula, a defendant “is liable in damages only for the monetary value of the portion of the decedent’s prospects that the defendant’s negligence destroyed.”

The first case involved a lawsuit against Dr. Neil S. Birnbaum, an internist, and his medical group, Dedham Medical Associates, by the family of Kimiyoshi Matsuyama, who died from gastric cancer.

A jury found Birnbaum negligent in misdiagnosing Matsuyama and awarded his estate $160,000 for pain and suffering and $328,125 for his loss of chance. At trial, the jury heard expert testimony about the various stages of gastric cancer and the specific survival rates associated with each.

According to the testimony, Matsuyama’s chance of survival immediately preceding the malpractice was less than 50%, but his chance of survival was reduced almost to zero after the alleged negligence.

Birnbaum argued loss of chance was not cognizable under the Massachusetts wrongful death statute. The high court disagreed, recognizing loss of chance “not as a theory of causation, but as a theory of injury.”

The high court emphasized, however, that its decision was limited to loss of chance in medical malpractice actions.

Next, the high court rejected Birnbaum’s argument that the wrongful death statute, which imposes liability on anyone who “by negligence causes the death of a person,” allows only claims that the defendant was a but-for cause of the decedent’s death.

According to the high court, “claims for loss of chance of survival are sufficiently akin to wrongful death claims as to be cognizable under the wrongful death statute.”

As to calculating damages, the high court adopted a proportional approach and set forth a specific formula in which full wrongful death damages are multiplied by the percentage a patient’s chances of survival was diminished by the physician’s negligence.

In the second case, the high court found loss of chance damages were recoverable where the physicians’ negligence reduced the decedent’s chances of survival from a better than even chance to less than even, and where the jury found the defendant physicians were not liable for causing the decedent’s wrongful death.

This case involved Mary Jane Renzi who died from metastatic breast cancer. Her family sued her treating physicians (defendants) for wrongful death. At trial, the jury heard expert testimony that the delay in diagnosing Renzi’s breast cancer reduced her ten-year survival rate from 58% to 30%.

The jury found the defendants’ negligence was “a substantial contributing factor in causing” Renzi’s loss of chance of survival and plaintiffs obtained a $2.8 million damages award.

The high court said it would be arbitrary to limit a loss of chance recovery where a patient’s prenegligence chance of survival was better than even, and dropped to less than even as a result of the negligence.

Moreover, the jury properly found defendants liable for causing the patient’s loss of chance to survive and not for causing the patient’s wrongful death. “A jury may find the defendant liable either for causing the patient’s wrongful death, or for causing the patient’s loss of a chance to survive, but not for both,” the high court clarified.

While agreeing loss of chance was recoverable in the case, the high court nonetheless remanded for further proceedings on the damages issue

According to the high court, the trial judge’s instructions on damages “conflated ordinary wrongful death and loss of chance of survival as theories of injury, and failed to give the jury any guidance on how to calculate damages for loss of chance of survival.” Thus, the high court was uncertain whether the jury calculated damages appropriately per the proportional approach it set forth in the first case.

Matsuyama v. Birnbaum,  No. SJC-09964 (Mass. July 23, 2008).

Renzi v. Paredes, No. SJC-10051 (Mass. July 23, 2008).