Loss of Chance in the Medical Case Alive in Massachusetts

On July 23 2008 in the case of Matsuyama v. Birnbaum, et althe highest appellate court in Massachusetts rendered a significant judgment dealing with the loss of chance arising out of negligent medical error. At trial the jury found the defendant physician liable for failing to diagnose gastric cancer in the presence of gastric distress over a period of 4 years of assessment. The patient died within months of the diagnosis. It was inferred by the experts that at the time of initial assessment the patient was suffering from stage 2 cancer with only a 25 to 40 per cent chance of survival. The jury found that the defendant’s negligence decreased the the patient’s chance of survival by 37.5 per cent and the court awarded that proportion of wrongful death damages in addition to damages for prolonged pain and suffering.

In a view in stark contrast with the Canadian jurisprudence the court declared that permitting recovery for loss of chance is particularly appropriate in the area of medical negligence. Furthermore the panel of seven judges stated that recognizing loss of chance in the limited domain of medical negligence advances the fundamental goals and principles of tort law. The loss of chance doctrine has its origins in dissatisfaction with the prevailing “all or nothing” rule of tort recovery which requires a plaintiff to show that the defendant’s negligence more likely than not caused the ultimate outcome, in which case the plaintiff then recovers 100 per cent of his or her damages. This is to be contrasted to the award of nil damages under the “all or nothing rule” for the patient whose chance of survival is only 49 per cent.

The court relied on the deterrence object of tort law and took care to point out that the all or nothing rule fails to deter medical negligence because it immunizes whole areas of medical practice from liability, fails to provide the proper incentives to ensure that the care patients receive does not slip below the standard of care and skill of the average member of the profession practising the specialty and fails to ensure that victims, who incur the real harm of losing their opportunity for a better outcome, are fairly compensated for their loss.

The court was also sensitive to the practical realities of the medical negligence case in pointing out that it is the defendant’s negligence which effectively makes it impossible to know whether the person would have achieved a more favorable outcome had he or she received the appropriate standard of care, which would then make it 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.

Unfortunately there is no sign yet that these arguments will hold sway in the highest levels of Canadian courts which have rejected compensation on the basis of loss of chance in medical negligence cases.