Court weighs new med-mal cause of action

Massachusetts’ highest court is considering a case that medical-malpractice defense lawyers say could unfairly make it easier for people to sue doctors under a new medical-malpractice theory.

The court will decide whether to recognize the “loss of chance” doctrine, which aims to hold a doctor responsible for a reduction in a patient’s statistical chance of survival or chance of avoiding becoming disabled.

Loss of chance has been claimed in a variety of contexts, including failure to call for emergency help, failure to promptly admit or transfer a patient to a hospital, failure to perform surgery and failure to prescribe cancer treatment.

The current case, Renzi v. Paredes, involves a wrongful death lawsuit in which the estate of a cancer victim argued that her statistical likelihood of survival was substantially reduced by her doctor’s inability to properly diagnose her condition.

Peter C. Knight of Boston, who represents the doctor, wrote in the defendant’s brief that allowing plaintiffs to sue on this theory would result in a radical change in established state law.

Knight, who practices with Morrison Mahoney, contended that allowing such cases to proceed would open the floodgates to litigation by creating a “vast and sweeping new tort.”

In a friend-of-the-court brief filed by the Professional Liability Foundation, John J. Barter added that a plaintiff who cannot prove that it is more likely than not that a physician’s negligence caused a patient to die would, illogically, still be permitted to sue the doctor.

“The Foundation is concerned that such a profound revision of firmly established law would increase the number of civil cases that would be filed against physicians and [other] medical care providers, increase the cost of professional liability insurance, and ultimately undermine the goal of maintaining public access to quality primary medical care,” he wrote.

‘Alarmist arguments’

While acknowledging that the Massachusetts Supreme Judicial Court has never formally recognized the loss of chance doctrine, the patient’s lawyer, Annette Gonthier-Kiely of Salem argued in her brief that lower courts in the state have allowed cases to proceed under such a theory for a long time.

“Contrary to defendants’ contention, ‘loss of chance’ does not constitute a ‘drastic’ change in law,” she wrote. “Loss-of-chance cases have been tried in Massachusetts for decades and the Appeals Court has recognized the theory in principle if not expressly referring to the doctrine.”

Gonthier-Kiely’s stance was strongly supported in a friend-of-the-court brief submitted by the Massachusetts Academy of Trial Attorneys (MATA).

Because this theory has already been recognized in Massachusetts, “alarmist arguments warning against opening the floodgates of litigation are specious,” wrote MATA’s J. Michael Conley. “The law has been established for some time and there has been no flood.”

Late diagnosis

In May 2001, an administrator for the estate of Mary Jane Renzi filed a med-mal suit against two doctors who had treated Renzi prior to her death in 1999.

The complaint alleged wrongful death, pain and suffering, and other personal injury claims based on the doctors’ inability to properly diagnose her breast cancer.

The plaintiff had retained experts who testified that the doctors’ failure to perform tests resulted in a delayed diagnosis, which clearly caused Renzi harm.

Had the patient’s cancer been detected earlier, the experts testified, she would have had a 58 percent chance of living disease-free for 10 years.

They contended that, by the time of her diagnosis, her survival chances had been reduced to 30 percent.

Midway through a 2005 jury trial in Lawrence Superior Court, one of the doctors settled for $1.5 million. A jury found the other doctor negligent, but said that any negligence was not a substantial factor in her death.

Over objections by the defense, the jury was instructed and provided special questions on a claim for loss of a substantial chance of survival.

The jury came back with an award of $2.8 million plus interest.

In September 2007, the Supreme Judicial Court agreed to hear the doctor’s appeal.

‘Drastic change in the law’

If the lower court decision is affirmed, wrote Knight, the responsibilities placed on lawyers who represent doctors would drastically change.

“Physicians and defendants will bear the burden of not only demonstrating that their conduct or delay in diagnosis did not cause the outcome but that they did not cause the loss of a chance of a better outcome,” he said.

Knight contended that the court didn’t have the right to recognize the loss of chance theory, because it would be changing the wrongful death statute written by the Legislature in 1840.

He noted that the statute makes liable an individual who “causes” someone else’s death, but makes no mention of holding someone responsible for a patient’s “loss of chance.”

But Gonthier-Kiely argued that public policy favors recognizing the loss of chance theory.

In a case “where a doctor’s negligence has deprived his patient of a substantial chance to survive or to avoid disability, justice mandates that the interest of the patient in her right to her own life be valued over the interest of the doctor in escaping liability for the harm he caused,” she wrote.

Rather than increasing the amount of litigation, she said imposing liability on doctors under these circumstances will improve the quality of medical care in Massachusetts.

“The loss of a substantial chance of survival is a real injury manifested by physical harm,” she wrote.

Questions or comments should be directed to the writer at: david.frank@lawyersweekly.com