Doctor can be sued for patient’s lost chance of survival

In a pair of closely watched cases that significantly expand the types of claims plaintiffs can bring against doctors in medical malpractice cases, the Massachusetts Supreme Judicial Court has decided that state law for the first time will permit “loss of chance” recovery.

The “loss of chance” theory 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.

One of the two cases the court considered, Matsuyama v. Birnbaum, was a wrongful death lawsuit brought by a widow claiming that her husband’s lost chance of recovery resulted from a doctor’s failure to treat his stomach cancer.

The physician argued that adopting this theory would result in a radical change in established law and constitute an impermissible judicial amendment to the wrongful death statute.

But the court disagreed, finding that the doctor could be sued for his failure to properly diagnose the patient’s fatal stomach cancer and causing him to have a less than even chance of survival.

“Although we address the issue for the first time today, a substantial and growing majority of the states that have considered the question have [endorsed] the loss of chance doctrine, in one form or another, in medical malpractice actions,” wrote Chief Justice Margaret H. Marshall for the court. “We join that majority to ensure that the fundamental aims and principles of our tort law remain fully applicable to the modern world of sophisticated medical diagnosis and treatment.”

In a companion case, Renzi v. Paredes, the plaintiff claimed that a doctor’s delayed diagnosis reduced the patient’s likelihood of long-term survival and led to her death from inflammatory breast cancer.

The court held that loss of chance damages are recoverable where a physician’s negligence reduced the decedent’s chances of survival from a better than even chance to less than even.

Doctors ‘afraid’

As a result of the rulings, Boston med-mal defense attorney David Gould said that doctors are “afraid” because “they think it’s difficult enough to deal with large numbers of patients, and now they feel the legal system is coming down harder and harder on them.”

Bruce Auerbach, president of the Massachusetts Medical Society, contended that the diagnostic and “staging” levels for cancer, as alluded to in the decision, “were never intended for purposes of civil litigation. They were determined to help guide [physicians’] clinical evaluation and strategy.”

If the ruling “stays out there unchallenged,” he cautioned, it has the potential of limiting access to medical care.

“Physicians might start to limit their practices to those patients that have a better chance of a cure,” said Auerbach, who is vice president of emergency and ambulatory services at Sturdy Memorial Hospital in Attleboro.

Still, “as long as physicians practice appropriately within the standard of care, they have nothing to worry about,” said Gould, who practices with Ficksman Conley.

Joseph L. Doherty, of Boston’s Doherty & Quill, whose practice consists primarily of defense work, predicted that there won’t be an increase in claims against physicians as a result of the rulings.

“I don’t anticipate that we’re going to see a barrage … of stand-alone loss of chance cases apart from the wrongful-death medical-malpractice claims that have always been allowed,” he said.

But doctor-lawyer Max Borten, a partner at the law firm of Gorovitz & Borten in Waltham, who represented the executrix of the estate of the man who died of stomach cancer in the SJC case, said the court’s ruling represents a dramatic change in the law by permitting a larger class of aggrieved patients to bring suit.

“The court is clearly saying that a doctor should not be absolved of negligence just because a patient had a less than 50 percent chance of survival or recovery,” said Borten, who is a licensed obstetrician-gynecologist.

Cancer cases

In the first case, the executrix of the patient’s estate filed a wrongful death complaint in Superior Court in 2004 against the doctor who had treated her husband.

The complaint alleged that the patient presented with symptoms of gastric cancer in 1996, but that the doctor failed to properly diagnose and treat him.

The doctor saw the patient six times over four years. He always recommended over-the-counter antacids for the patient’s stomach pain and he didn’t order diagnostic tests until less than five months before the man’s death.

It was then discovered that he had cancer over 70 percent of his stomach. He died of gastric cancer in October 1999.

At trial, an expert for the plaintiff testified that as a result of the doctor’s breach of the standard of care, the patient lost the opportunity of having his gastric cancer “diagnosed and treated in a timely fashion when it might still have been curable.”

The jury found the physician negligent in misdiagnosing the patient’s condition. The jury also found the doctor’s negligence was a “substantial contributing factor” in the patient’s death.

As a result, the patient’s widow and son were awarded $328,125 for the loss of chance of survival. The SJC affirmed the award.

In the second case, the defendants argued that the breast cancer was a very aggressive form usually diagnosed at an advanced stage, and that due to the ‘biology’ of the tumor the decedent’s prognosis for survival was poor and “her fate was sealed.”

But the court rejected the argument, affirming a $2.8 million verdict.

New doctrine

Despite the doctor’s argument that the court’s ruling would unfairly expand the causes of action available to plaintiffs in Massachusetts, Marshall said the decision was limited to med-mal cases.

“[T]he loss of chance doctrine views a person’s prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physician’s tortious conduct,” she wrote. “Where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages.”

In a footnote, the judge noted that the highest courts of at least 20 states have already adopted the doctrine.

In any case involving loss of chance, Marshall explained, a plaintiff first has to establish by a preponderance of the evidence that a doctor’s negligence caused the injury.

“Courts … also have noted that, because a defendant’s negligence effectively made it impossible to know whether the person would have achieved a more favorable outcome had he received the appropriate standard of care, it is particularly unjust to deny the person recovery for being unable ‘to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass,’” she wrote.

Marshall said the doctrine originated out of dissatisfaction with the prevailing “all or nothing” rule, which allowed plaintiffs to recover only by showing that a physician’s negligence more likely than not caused a patient’s death.

As long as the patient’s chance of survival before the physician’s negligence was less than even, it was logically impossible, the judge wrote, to show that the patient would not have died without the doctor’s allegedly negligent conduct.

Regardless of how flagrant the negligence, Marshall said, the “all or nothing” rule unfairly provided doctors a blanket release from liability any time there was less than a 50-percent chance of survival.

“In sum, whatever difficulties may attend recognizing loss of chance as an item of damages in a medical malpractice action, these difficulties are far outweighed by the strong reasons to adopt the doctrine,” she said.  MMLR

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writer at: david.frank@lawyersweekly.com

Barbara Rabinovitz contributed to this article.