Previously we began a two-part series looking at the legal doctrine of “loss of chance” in Massachusetts medical malpractice cases. It was noted that, prior to a pair of decisions in 2008, an injured patient needed to show by a “preponderance of the evidence” (that is, a greater than 50% likelihood) that the doctor’s negligence caused the patient’s injury or death. The first case to introduce the concept of “loss of chance” was a case involving Kimiyoshi Matsuyama, whose doctor failed to timely test for and uncover cancerous tumors in Mr. Matsuyama’s stomach.
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.