Law & Society

Loss of chance damages resulting from delayed diagnosis of cancer. A physician who delays diagnosing cancer can dramatically reduce a patient’s chance of recovery and survival. A doctor commits malpractice if his delay diminishes a patient’s chance of survival, even if the patient’s prospect for recovery is less than 50 percent. The Massachusetts Supreme Judicial Court last year adopted the “loss of chance” doctrine for medical malpractice cases. Following the SJC’s rulings in Matsuyama v. Birnbaum, 452 Mass. 1 (2008), and Renzi v. Paredes, 452 Mass. 38 (2008), cancer victims and their families can recover damages for negligent delays in diagnosing cancer that reduces or eliminates the victim’s chance of survival.

Under prior law, a patient suing a doctor had to prove it was more likely than not (i.e., more than 50 percent likely) that the doctor’s malpractice caused the patient’s injuries. This meant a cancer victim who had less than an even chance of survival prior to the negligence was barred from any recovery.
However, as the SJC said in Matsuyama, the “probability of survival is part of the patient’s condition. When a physician’s negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real injury. The patient has lost something of great value: a chance to survive, to be cured, or otherwise to achieve a more favorable outcome.”

In the Matsuyama case, Kimiyoshi Matsuyama, a 46-year-old Massachusetts man, died of stomach cancer that was overlooked by his physician. Over a number of years, Matsuyama had recurring complaints of severe gastric pain and heartburn. But his doctor did not order any tests or a biopsy to accurately ascertain the man’s condition. The doctor initially diagnosed gastrointestinal reflux disease, and recommended over-the-counter medications.

Eventually, the doctor suspected gastritis and ordered a test for a bacteria associated with gastric cancer. Even though the test came back positive, the doctor did not follow up with an endoscopy or a biopsy to definitively confirm or rule out his preliminary diagnosis of gastritis.

When Matsuyama’s condition worsened, the doctor ordered further tests that revealed a cancerous growth in the man’s stomach. Matsuyama died within five months. His surviving wife and son sued the doctor for his delayed diagnosis of stomach cancer. After trial, the jury awarded the wife and son $160,000 in damages for Matsuyama’s pain and suffering, and $328,125 for his loss of chance of survival due to the doctor’s malpractice.

Calculating loss-of-chance damages can be tricky. It boils down to assessing the proportion of overall damages that is attributable to the doctor’s negligence.

To illustrate, let’s assume the following: A jury finds that the full wrongful death damages is $600,000; the patient had a 45 percent chance of survival prior to the malpractice; and the malpractice reduced the patient’s chance of survival to 15 percent. This means the doctor’s malpractice reduced the chance of survival by 30 percent. The total damages of $600,000 is multiplied by 30 percent, leaving loss-of-chance damages of $180,000.

A doctor’s malpractice can cause conscious pain and suffering. These damages in medical malpractice cases are treated the same as pain and suffering in any personal injury case, which means they are not part of the proportional damages calculation used for loss of chance, and are awarded in full.

However, there is a second kind of pain and suffering that accompanies the ultimate injury in the case, i.e., dying of cancer. This category of pain and suffering would more likely than not have occurred even absent the physician’s negligent conduct. The physician may be liable only to the extent his negligent conduct diminished the victim’s likelihood of avoiding death, which means this kind of pain and suffering is subject to the proportional damages calculation.

If you, or a loved one, or a friend is suffering from cancer, and you think the treating physician delayed diagnosing the cancer, I am available to discuss your legal options, including the possibility of obtaining loss-of- chance damages.