Verdicts

The Supreme Judicial Court of Massachusetts has ruled that doctors can be held liable for negligence that leads to a patient's loss of chance to recover, even when the patient's chances of survival already were below the 50% mark. Matsuyama v. Birnbaum, 452 Mass. 1, — N.E.2d —-, 2008 WL 2807476 (Mass.,7/23/08).

The Matsuyama plaintiff accused a primary care physician of misdiagnosing a patient's cancer, thus delaying for years his discovery of the condition. By the time plaintiff's deceased found out he had cancer, it was too late to save him. His estate brought suit for, among other things, medical malpractice and wrongful death. Plaintiff's expert told the jury that if the doctor had ordered appropriate testing in 1995, the cancer “would have been diagnosed” and “treated in a timely fashion when it might still have been curable.” The jury awarded damages for loss of chance, which they calculated as follows: They awarded $875,000 as “full” wrongful death damages. They then found that the deceased was suffering from Stage II cancer at the time of the doctor's initial negligence and had a 37.5% chance of survival at that time. They therefore awarded the plaintiff “final” loss-of-chance damages of $328,125 ($875,000 multiplied by .375).