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Loss of chance doctrine in MA medical malpractice

Can you explain what the loss of chance doctrine is and how it impacts medical malpractice cases? Because I have a friend who's husband recently passed under strange circumstances, I've read a bit about it but don't really get it. Thank you.

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I'll give it a try.  The doctrine comes into to play in cases where a seriously ill person loses what little chance she had to survive or delay her death because of the negligence of a medical professional.  In a case from 2008 (Matsuyama v. Birnbaum), the Massachusetts Supreme Judicial Court recognized the Loss of Chance Doctrine in medical malpractice claims.  The Court held that, if the doctor's negligence eliminates the patient's chances of attaining a more favorable outcome, that is a recognizable harm and the doctor may be liable for damages.  This decision placed Massachusetts law in line with a majority of other jurisdictions that have done away with the so-called "all or nothing rule."  In Matsuyama, the Court explained the problem with the all or nothing rule as follows:


Under the all or nothing rule, a plaintiff may recover damages only by showing that the defendant's negligence more likely than not caused the ultimate outcome, in this case the patient's death; if the plaintiff meets this burden, the plaintiff then recovers 100% of her damages. Thus, if a patient had a 51% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the estate is awarded full wrongful death damages.

 On the other hand, if a patient had a 49% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the plaintiff receives nothing. So long as the patient's chance of survival before the physician's negligence was less than even, it is logically impossible for her to show that the physician's negligence was the but-for cause of her death, so she can recover nothing.  Thus, the all or nothing rule provides a "blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence." (Quoting Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 614 (1983)).


In summarizing their reasoning, the Court explained its belief that the loss of chance doctrine will allow courts to view a person's prospects for surviving as something of value, " . . . even if the possibility of recovery was less than even prior to the physician's tortious conduct. Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages."  For more informtion or to post a question, visit our Massachusetts Medical Malpractice Discussion Forum.


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