Matsuyama v. Birnbaum

Supreme Judicial Court of Massachusetts · 2008 · Torts

Tortsmedical malpracticewrongful deathloss of chanceloss of chancemedical malpracticewrongful deathcausation

Facts

The decedent, Kimiyoshi Matsuyama, repeatedly presented gastric complaints and had known risk factors for gastric cancer, including Asian ancestry, years spent in Korea and Japan, smoking history, and later a positive H. pylori test. Over approximately three years, Dr. Birnbaum did not order diagnostic gastrointestinal testing that the plaintiff's expert testified should have been ordered beginning in 1995. In 1999 testing finally revealed infiltrative gastric adenocarcinoma, and Matsuyama died that October. The plaintiff's expert testified that earlier diagnosis would have allowed treatment when the cancer might still have been curable, and the jury found Matsuyama had stage 2 cancer at the time of the initial negligence with a 37.5% chance of survival.

Issue

Whether Massachusetts law permits recovery in a medical malpractice wrongful death action for the loss of a less-than-even chance of survival. Also, whether such a claim is cognizable under the Massachusetts wrongful death statute and, if so, how damages should be calculated.

Rule

In Massachusetts medical malpractice cases, loss of chance is recognized as a theory of injury, not a theory of causation. A plaintiff must prove by a preponderance of the evidence that the physician's negligence caused a diminution in the patient's likelihood of achieving a more favorable medical outcome. In wrongful death cases, damages for loss of chance are calculated by the proportional damages method: determine full wrongful death damages, determine the patient's chance of survival before the malpractice, determine the chance after the malpractice, subtract the latter from the former, and multiply the full damages by that percentage reduction.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Boston, Dr. Lena Corbett negligently failed to order indicated imaging for Omar Nasser's aggressive infection. Expert testimony showed that before the negligence Omar had a 35% chance of avoiding fatal complications, but after the delay his chance fell to 5%, and he later died.

If Omar's estate sues for medical malpractice wrongful death, which is the strongest basis for recovery?

Explanation. The majority recognized loss of chance in medical malpractice as a theory of injury, not a relaxation of causation. The plaintiff must still prove by a preponderance of the evidence that the physician's negligence caused a diminished likelihood of achieving a more favorable medical outcome. Recovery is not limited to patients who initially had a better-than-even chance of survival.