Medical Malpractice: Loss of Chance

One of the elements of a medical malpractice case is causation — the requirement that the doctor’s malpractice actually cause an injury in order for the malpractice to be legally actionable. If a doctor makes an error in prescribing a medication for a patient — say, by prescribing a medication that would cause a fatal interaction with other medicines the patient is taking — but the hospital pharmacist catches the doctor’s error before the medicine is actually given to the patient, the patient does not have a medical malpractice case against his doctor because of the legal requirement that the malpractice must cause harm to the patient.

But over time, this traditional legal doctrine about causation came to be severely tested. Imagine a patient who shows up at a doctor’s office with a disease so deadly or so advanced that his chances of survival at the time of the first doctor’s visit are already less than 50 percent. Then imagine the doctor fails to detect the disease or misdiagnoses it, thereby enabling the disease to progress and the patient’s prospects for survival to deteriorate further. The patient dies as a result. What are the legal consequences? Did the doctor commit medical malpractice?

Surprisingly, the historical answer was that the doctor in such a situation had not committed legally actionable medical malpractice. Given that the patient was already likely to die the first time that the doctor saw him (the patient’s chances of survival at the very beginning were less than 50 percent), the doctor’s malpractice in failing to detect the disease or mistreating it could not be said to have caused the patient’s death: the patient was going to die anyway.

Twenty years ago, in the landmark case of Falcon v. Memorial Hospital, the Michigan Supreme Court turned history on its head and ruled that patients with a less-than-50-percent chance of survival could sue for what is called a “loss of chance.”¹ Thus a patient who has a forty percent chance of survival at the outset, but whose chances of survival were reduced to ten percent by a medical error, can sue for medical malpractice. Nearly two decades later, in the 2008 case of Matsuyama v. Birnbaum, the Massachusetts Supreme Judicial Court followed suit and recognized a medical malpractice cause of action for “loss of chance of survival.”² As the Supreme Judicial Court noted in Matsuyama, its decision reflected a change in the practice of medicine that had occurred since the traditional rule had been formulated. Today, doctors have a greater capacity for saving patients through effective, timely treatment and so a loss of a chance of survival is a much more real loss than it was a couple of generations ago. Moreover, since in many medical specialties, such as oncology, many patients already have a less-than-even chance of survival when they first consult with their doctors, the historical rule would in effect immunize whole medical specialties from medical malpractice liability.

Thankfully, the Massachusetts Supreme Judicial Court has followed Michigan’s lead and brought Massachusetts medical malpractice law into the twenty-first century. If you suspect that someone you care about suffered a loss-of-chance at survival due to substandard treatment, the Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. are available for a free consultation.