Procedural History: A jury found that the defendant physician’s negligence deprived the plaintiff’s decedent of a less than even chance of surviving cancer. The jury found for plaintiff after hearing expert testimony estimating the lost chance that Matsuyama had due to the doctor’s delayed diagnosis. The jury found that Birnbaum’s negligence was a “substantial contributing factor” to Matsuyama’s death and awarded $875,000 for a full wrongful death action, which was multiplied by the 37.5% estimated lost chance, so that plaintiff would receive $328,125 in addition to $160,000 for pain and suffering.
Facts: Birnbaum was aware of Matsuyama’s Asian ancestry and that he was a smoker and at high risk of gastric cancer. However, he conducted only a physical examination when Matsuyama came to him complaining of heart burn and pains. Birnbaum did not order any tests and diagnosed Matsuyama with reflux and recommended over-the-counter medicine as treatment. Matsuyama’s symptoms worsened and Birnbaum recommended the same. When moles developed on his body, Birnbaum concluded that they were benign, although Birnbaum ordered a test for a bacteria associated with several diseases,, including gastric cancer. Although the test came back positive, Birnbaum did not order tests that would confirm his working diagnosis of gastritis, a non-malignant irritation of the stomach lining. When Matsuyama went to Birnbaum complaining of epigastric pain, vomiting, weight loss and feelings of fullness, Birnbaum ordered a gastrointestinal series and an abdominal ultrasound which revealed a 2 cm mass in his stomach. Subsequent procedures confirmed gastric cancer and Matsuyama died 5 months after diagnosis.
Issue: Does Massachusetts law allow recovery for a “loss of chance” in a medical malpractice wrongful death action?
Rules: Under the all or nothing rule, a plaintiff may recover damages only by showing that the defendant’s negligence more likely than not caused the ultimate outcome.
In order to prove loss of chance, the plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s injury, where the injury consists of the diminished likelihood of achieving a more favorable medical outcome.
The proper test in a loss of chance case concerning the conduct of a single defendant is whether that conduct was the but-for cause of the loss of chance.
Deriving the damages for which the physician is liable will require the fact finder to undertake the following calculations:
(1) The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute, or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decedent’s death or injury.
(2) The fact finder must next calculate the patient’s chance of survival or cure immediately preceding (“but for”) the medical malpractice.
(3) The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice.
(4) The fact finder must then subtract the amount derived in step 3 from the amount derived in step 2.
(5) The fact finder must then multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damages award for loss of chance.
Application: The all or nothing rule ‘fails to deter’ medical negligence because it immunizes ‘ whole areas of medical practice from liability.’ It provides a blanket release from liability for doctors and hospitals any time there was less than a 50% chance of survival, regardless how flagrant the negligence.
Conclusion: A plaintiff may recover proportional damages to the loss of chance sustained due to defendant’s negligence in a medical malpractice suit. Judgment affirmed for plaintiff.