Consider this scenario: a patient enters a hospital with a serious medical condition that will, if untreated, result in the patient’s death. Upon admission and initial examination by the hospital doctors, the patient is given a 30% chance to survive the condition. A procedure is offered to the patient that could, potentially, increase the patient’s chance for survival, if performed quickly and correctly. There would still be no guarantee of survival, but the patient’s odds of survival would be upgraded from 30% to 45%. Based on this information, the patient agrees to undergo the procedure. The doctor is negligent, however, in that he skips several important and obvious steps during the procedure. The botched procedure has a negative effect on the patient, who, after the procedure, is only given a 20% chance of surviving his condition. The patient later dies from his condition. Can the patient’s surviving kin or estate recover any damages from the doctor for reducing the likelihood that the patient would have otherwise survived his condition? Since 2008, in Massachusetts, the likely answer is, yes.
The State of the Law Before 2008
Before a pair of decisions in 2008, a plaintiff in a medical malpractice case needed to show, by a preponderance of the evidence (i.e., a greater than 50% chance), that a doctor’s negligence directly caused the patient’s death or injury. If a patient could show this – even if only by 51% – then recovery of monetary damages was permitted. However, if there was a less than 50% chance that the doctor’s negligence caused the patient’s death or injury, then no recovery at all was permitted and the patient or his survivors received nothing. Thus, in our example above, a medical malpractice case brought against the doctor would have resulted in no award to the patient’s estate or surviving kin, since it could not be shown by a preponderance of the evidence that the doctor’s negligence killed the patient.
The Loss-of-Chance Doctrine is Adopted
In two 2008 cases, the Supreme Judicial Court of Massachusetts ruled that state law allowed medical malpractice plaintiffs to recover for a “loss of chance.” The first such case involved an individual named Mr. Matsuyama, who had suffered gastric symptoms since 1988. His doctor prescribed him antacids in 1995. In 1999, the doctor ordered tests that revealed adenocarcinoma of the stomach and, five months later, Mr. Matsuyama died of the stomach cancer. At trial, the jury found that, at the time of the doctor’s negligence in not testing Mr. Matsuyama, the patient had a 37.5 percent chance of survival. The jury then awarded the patient’s estate 37.5 percent of the total damage award amount for the loss of chance of survival. The doctor’s attorney appealed.
The Supreme Judicial Court upheld the lower court’s ruling, finding that the traditional all-or-nothing rule provided “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.” The Court further found that, even where the patient’s prognosis is not good, a doctor who reduces the patient’s chance for survival or a more favorable outcome has “deprived the patient of something of value” for which the patient can be recompensed.
Next week’s post will examine the second case along with some practical implications from these two decisions. If you have been injured as a result of a doctor’s negligence, you should speak with an experienced medical malpractice attorney. Even if the doctor’s negligence did not cause your original problem, but reduced your chance for survival or a more favorable outcome, you may still be entitled to recover monetary damages. Contact us at (508) 755-7535 for a free consultation.