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.
The Second Case – Loss of Chance
The second case that introduced the “loss of chance” doctrine in Massachusetts involved a patient named Mary Jane Renzi. Ms. Renzi underwent a routine physical examination in 1993 with Dr. Lavonne Veatch. One month later, in January 1994, Ms. Renzi underwent a mammogram, which was read as showing normal results. Another mammogram was completed in January 1995. This second mammogram was also read (by a different doctor, Dr. Santiago Paredes) as showing no change from her 1994 mammogram.
In August 1995, after suffering from hidradenitis for several months along with breast tenderness, a mammogram and needle biopsy were conducted. These showed that Ms. Renzi had a form of breast cancer. Despite undergoing a variety of procedures – including a radical mastectomy, radiation, chemotherapy, and bone marrow transplant – Ms. Renzi died four years later.
Ms. Renzi’s estate sued both doctors for malpractice, although Dr. Veatch settled before a verdict was reached. The trial court determined that, although Dr. Paredes’ negligence was not a substantial factor in causing Ms. Renzi’s death, it was a substantial factor causing her to lose a chance of surviving her illness. Based on this loss of chance of survival, the trial court awarded Ms. Renzi’s estate damages.
The Supreme Judicial Court issued its decision in Ms. Renzi’s case the same day it issued its decision in Mr. Matsuyama’s case, and adopted its reasoning and analysis in his case in making its findings in Ms. Renzi’s case.
Practical Implications for Loss of Chance
For patients injured by a doctor’s negligence post-2008, the holdings in Mr. Matsuyama’s and Ms. Renzi’s cases allow recovery of monetary damages where previously no recovery was possible. By recognizing that negligence depriving a patient of a chance of survival or a more favorable outcome does in fact deprive the patient of “something of value,” Massachusetts courts allow injured patients to hold medical professionals accountable for their negligence, even in cases where that negligence may not be the predominant factor in causing their injury or death.
However, this “loss of chance” doctrine still requires the injured patient to produce evidence showing that a medical professional acted negligently, and that this negligence deprived him or her of a chance at having a more favorable medical outcome. This is not something patients can argue on their own. Instead, it typically requires that medical expert testimony be presented to the court.
Anytime a patient is injured by a doctor’s negligence – even if that negligence simply reduces the chance the patient had to experience a favorable outcome – the patient can hold the doctor accountable in a medical malpractice suit. Because of the rules that govern these sorts of cases though, patients should enlist the help of an experienced medical malpractice attorney. If you have been injured by a medical professional’s negligence, contact us at (508) 755-7535 for a free consultation.