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Legal Report: Court Defines a New Harm for Losing a Chance at Survival


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Legal Report: Court Defines a New Harm for Losing a Chance at Survival

By Philip Murray, Jr., JD, Murray, Kelly & Bertrand, PC

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

Even if negligence didn't cause a patient's death, it may be compensable if it lessened the chance of survival.

 Guest Commentators

  • Philip Murray, Jr., JD; Murray, Kelly & Bertrand, PC; Woburn, MA



The Massachusetts Supreme Judicial Court ruled recently that the estate of a deceased patient may recover damages from a physician whose negligence did not cause the patient's death, but caused the patient to suffer a loss of chance of survival. It's a new expansion of liability in Massachusetts, which joins a growing list of states that are doing the same thing. Boston defense attorney, Philip Murray, of Murray, Kelly & Bertrand, has more in this edition of the Legal Report.

[Philip Murray, Jr., JD]
In two unanimous decisions issued in 2008, the Supreme Judicial Court allowed a patient's family to recover damages for negligence that resulted in the loss of a chance of survival. It also discussed how such damages are to be calculated. The decisions in Matsuyama v. Birnbaum and Renzi v. Parades allow recovery based on statistical evidence and staging criteria used to prove that a delay in diagnosis likely resulted in the patient losing a chance at a better medical outcome. Since these statistics do not show that the alleged negligence actually caused the patient's death, the Court essentially defined a new harm: that is, losing a statistical chance of survival. So, if the staging criteria and statistics correlate with a general prognosis for similar patients, they may be admissible to prove the likelihood that a patient lost a chance to survive.

The Matsuyama case was brought on behalf of the estate of man who died of gastric cancer. The defendant, a board-certified internist, was the patient's primary care physician for the three years leading up to the diagnosis. The plaintiff contended that the defendant physician failed to comply with the applicable standard of care over that three year period; that the defendant's negligence resulted in a delay in the diagnosis of the cancer; and that the delay allowed the cancer to metastasize to an advanced, inoperable stage, resulting in the patient's premature death.

At trial, the plaintiff's expert witness described the Tumor-Lymph Nodes- Metastasis method of classifying cancer into stages. The expert testified that each higher stage reflected a more advanced cancer, with a statistically diminished chance for survival based on the metric of being five years cancer free after treatment.

The defendant's expert witness testified that the biology of the patient's type of stomach cancer was unusual and did not show symptoms until the cancer had progressed to an advanced stage with a poor prognosis. The defense maintained that general statistics were inapplicable.

The jury returned a verdict in favor of the plaintiff, finding that the defendant was negligent in treating the patient and that the negligence was a substantial contributing factor in the patient's death. However, the jury concluded that the patient was suffering from a stage 2 adenocarcinoma and had only a 37.5% chance of survival at the time of the defendant's negligence.

To assess the amount of the damages attributable to the doctors' negligence, the jury valued the “full” amount of damages from the patient's death at $875,000; then it applied the 37.5 percent chance of survival that the patient lost because of the negligent delay in diagnosis, and awarded the plaintiff that proportion of the full damages, or $328,125.

The defendant argued that Massachusetts law did not and should not allow recovery of “loss of chance” damages. The Supreme Judicial Court decided that “[w]hen a physician's negligence diminishes or destroys a patient's chance of survival, the patient has suffered real injury” that should be compensated. The Court concluded that the proportional approach most appropriately quantifies “loss of chance” damages so that the defendant “is not assessed damages for harm that he [or she] did not cause.”

Similarly, in the Renzi case, the estate of a woman who died of metastatic breast cancer alleged that a negligent delay in diagnosis reduced the patient's chance of ten-year survival from 58% to 30%. The jury found that both defendants were negligent and that their negligence did not cause the patient's death, but that it was “a substantial contributing factor in causing [the patient] the loss of a substantial chance to survive.”

In affirming the Renzi verdict on appeal, the Supreme Judicial Court clarified another point. It referenced the Matsuyama decision, and ruled that a wrongful death claim alleges a separate and distinct injury from a claim that the physician caused a loss of chance to survive. The court said that a plaintiff is not entitled to recover damages for both. Damages may be awarded only on one theory or the other.

Physicians understandably may question the reasonableness and scientific validity of permitting the recovery of damages for the loss of a chance of survival based on clinical staging criteria and related statistics. From a medical perspective, clinical staging statistics are useful for formulating treatment plans, but cannot predict the likelihood that a specific patient will have a particular outcome.

Principles of legal causation generally require proof that the plaintiff would not have sustained a particular harm without negligence. By allowing recovery for loss of a chance of survival, the law seeks to provide some compensation to patients subjected to negligent medical treatment when the available medical evidence does not permit a determination of whether that negligence caused the death.

These decisions highlight the difference between a focus on science and a focus on resolving conflict. They impose an additional incentive on healthcare providers to aggressively pursue reliable clinical care systems that foster timely and accurate diagnoses. At the same time, future developments in scientific knowledge concerning the nature and progression of cancer in particular individuals will ultimately provide the best medical care for patients—and may limit the viability of “loss of chance” claims.

January 1, 2009
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