Advanced Search

  • Topic
  • Specialty
  • Content Type


Also Related

< Back To Patient Safety
1 dislikes

< Hide

Comments For

Insight: Delayed Diagnosis and the Patient’s Loss of Chance of Survival


< Shrink

Add Your Voice

All comments are posted anonymously. Your comment will be attributed to: "Anonymous user."

post comment


Are you sure you want to delete this comment?


Insight: Delayed Diagnosis and the Patient’s Loss of Chance of Survival

By James S. Hamrock, Jr., Hamrock & Tocci

Related to: Ambulatory, Diagnosis, Emergency Medicine, Primary Care, Obstetrics, Other Specialties, Surgery

A recent Massachusetts court ruling means that a negligently delayed diagnosis of cancer may now entitle plaintiffs to recover damages even if their prognosis would have been the same despite an earlier diagnosis. In July, 2008, the Massachusetts Supreme Judicial Court (SJC) ruled that a physician could be held liable for malpractice even though a jury had determined that the patient probably would have died from his cancer, regardless of the negligent actions, or inactions, of the physician in failing to make an earlier diagnosis of cancer. The SJC’s decision puts Massachusetts in line with the majority of states where the “loss of chance” issue has been decided. In its decision, the SJC pointed out that of the 30 states whose courts had already ruled on this issue, 20 had decided to allow this theory of liability, while 10 had decided against allowing it.

Traditional Tort Law

Tort, or civil personal injury law, has always been based on probability. It differs from criminal law, which places on the prosecution a high burden of proof— beyond a reasonable doubt—to persuade a jury to convict a defendant of a crime. The standard of proof is lower in a civil case. A plaintiff must prove a defendant’s liability to a jury by a “preponderance of the evidence.” If the jury finds that the evidence “more likely than not” favors the plaintiff’s contentions, the plaintiff has met his burden of proof. In malpractice cases, a plaintiff traditionally had to prove two things. First, the plaintiff must prove that the physician was negligent; that is, that the physician’s care fell below the standard of care that would be expected of the average qualified physician treating a patient in similar circumstances. If the jury finds negligence, it then answers the “causation” question. Did the physician’s negligence cause injury to the patient? Thus, to prevail, the plaintiff had to prove that it was more probable than not that the physician’s negligence caused injury to the patient. Even if the jury found that the physician was negligent, the physician was not liable for damages if the jury found that the negligence had not caused injury to the patient. (In a wrongful death case, the injury for which compensation is sought, of course, is the death.)

Sidestepping Traditional Tort Law

The malpractice case at issue claimed a failure to diagnose gastric cancer, which failure allegedly resulted in the patient’s death. The jury heard conflicting expert witness testimony from each side as to whether the cancer should have been diagnosed sooner, and whether earlier diagnosis would have been curative. The jury, in answering the negligence question, agreed with the plaintiff’s expert that the physician’s care had fallen below the standard of care in not making an earlier diagnosis. On the causation question, the jury seemingly agreed with the defense oncology expert on the staging of the cancer. The jury found that even if the physician had diagnosed the cancer earlier, the probability of the patient surviving would only have been 37.5%. Under traditional tort law principles, the plaintiff would have lost the lawsuit, because the plaintiff had not proved “by a preponderance of the evidence” that the physician’s actions had caused the patient’s death. The SJC ruled that it would be unfair to exonerate a physician whose negligence had denied the patient a “loss of chance” of survival. The SJC reasoned that with all the aggressive surgical and oncology care typically offered to patients who have an approximate 38% chance of surviving their cancer, the loss of this chance was something of real and substantial value to the patient.


The SJC ruled that if a physician’s negligence did not cause the death of the patient, but did cause the loss of chance of survival, the damages to be awarded to the patient’s Estate would be equivalent to the percentage of the loss of chance. That is, if the jury determined that a patient had a 45% chance of surviving his cancer at the time the physician should have diagnosed it, but his chance of survival was only 10% at the time the diagnosis was eventually made, then the patient’s Estate would be entitled to damages of 35% (45-10) of full wrongful death damages. (Full wrongful death damages are what a jury determines to be the value of the loss suffered by the patient’s next of kin of the patient’s society, companionship, services, and income.)


The SJC’s decision on “loss of chance” will increase the likelihood of lawsuits being filed against physicians based on alleged failure to timely diagnose. Plaintiff attorneys now have available, in essence, a second bite at the apple, particularly if they believe they have a strong case on their claim that the physician did not explore or follow-up on worrisome symptoms. Even if the jury finds that earlier diagnosis would not have saved the patient, the patient’s estate may still recover for the value of the loss of chance of surviving the disease caused by the delay in diagnosis.


The full SJC opinion in the case, Matsuyama v. Birnbaum, can be found in the official SJC reports at 452 Mass. 1 (2008). 

November 10, 2009
1 dislikes

< Back To Patient Safety