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Loss of Chance of Survival in Medical Malpractice

hospital-corridor-1057587-mKimiyoshi Matsuyama went to his doctor’s office for a routine physical examination. Medical records of the visit indicate that Mr. Matsuyama complained of heartburn and difficulty breathing that was associated with eating and lifting. Mr. Matsuyama’s doctor, Dr. Birnbaum, did not order any tests to determine the origin or cause of his patients complaints. At a subsequent trial, Dr. Birnbaum testified that he was aware that Mr. Matsuyama had a history of smoking and was at significantly higher risk for developing gastric cancer than was the general population of the United States. Instead, the doctor diagnosed his patient with gastrointestinal reflex disease and recommended over the counter treatments.

Dr. Birnbaum treated Mr. Matsuyama for approximately three more years. Each time that Mr. Matsuyama complained of an ailment or discomfort he was experiencing (such as a suspicious mole), he was told that it was not something to be fearful of. Subsequently, a mass was found in Mr. Matsuyama’s stomach and he was diagnosed with infiltrative gastric adenoid carcinoma. He began treating with specialists for his condition and subsequently passed away due to the gastric cancer.

The Estate of Mr. Matsuyama brought a complaint against the Defendant Doctor alleging wrongful death. The complaint alleged that Dr. Birnbaum breached the applicable standard of care in evaluating and treating Mr. Matsuyama which resulted in his death. An expert retained by the estate opined that, “in light of Matsuyama’s complaints, symptoms, and risk factors, including the presence of H. pylori, his Japanese ancestry, his having lived in Japan or Korea for extended periods, his smoking history, and other well-known risk factors, an internist exercising the expected standard of care would have ordered an upper gastrointestinal series X-ray or an endoscopy, or referred Matsuyama to a specialist for endoscopy, beginning in 1995.” The Estate argued that had the doctor ordered the appropriate testing as early back as 1995, the cancer that Mr. Matsuyama ultimately died of would have been diagnosed and treated in a way where it may have been curable.

The Estate was successful in their case against the Defendant physician on the theory of “loss of chance.” The loss of chance doctrine permits liability where the defendant’s acts diminish the patient’s chance of survival, even if the person already was unlikely to survive. The Supreme Judicial Court in Massachusetts looked to other jurisdictions in an attempt to guide them on applying this theory of liability. In quoting the Supreme Court of Wyoming, the court wrote:

“First, the loss of an improved chance of survival or improvement in condition, even if the original odds were less than fifty percent, is an opportunity lost due to negligence. Much treatment of diseases is aimed at extending life for brief periods and improving its quality rather than curing the underlying disease. Much of the American health care dollar is spent on such treatments, aimed at improving the odds. In the words of the Delaware Supreme Court, ‘[i]t is unjust not to remedy such a loss.’ Second, immunizing whole areas of medical practice from liability by requiring proof by more than fifty percent that the negligence caused the injury fails to deter negligence conduct. As Judge Posner wrote in DePass v. United States, ‘A tortfeasor should not get off scot free because instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim’s life.’ ”

The court held that to prove loss of chance, a plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s likelihood of achieving a more favorable outcome to be diminished. Put another way, a plaintiff must prove that it is more likely than not that the defendant’s actions reduced his or her chance of a better outcome.

To read more on the case referenced above, please read Matsuyama v. Birnbaum.  If you believe you have a medical malpractice case, our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.