Brief Fact Summary.
Dr. Birnbaum (Defendant) was Matsuyama’s (Plaintiff) primary-care doctor. Despite treating Plaintiff for stomach pain for four years, Defendant did not properly diagnose Plaintiff’s gastric cancer until it was too late to treat it. Plaintiff’s estate sued for negligence.
Synopsis of Rule of Law.
A physician is liable for damages when his negligence reduces or eliminates a patient’s chance of a more favorable medical result, even where the patient’s chances were low to begin with.
Plaintiff began experiencing gastric distress in 1988. He was still suffering from this distress in July 1995 when he began to see Defendant, a primary care physician. Defendant recommended that Plaintiff take over-the-counter medications for heartburn and acid reflux to resolve his pain. Plaintiff then developed moles on his body and over his eye, and Defendant determined that they were benign. After Plaintiff visited an urgent care facility for severe stomach pain, Defendant ordered a test for a bacteria, H. pylori, that is connected to several diseases, including gastric cancer. The test was positive, and Defendant diagnosed Plaintiff with gastritis, a non-malignant irritation. Defendant made this diagnosis without further tests to confirm it, or to rule out gastric cancer. Defendant finally diagnosed Plaintiff with gastric cancer in 1999. At that point, it was too late to treat Plaintiff and he died within a few months of the diagnosis. Plaintiff’s estate sued Defendant for negligence and a jury found for Plaintiff, awarding $160,000 for pain and suffering and $328,125 for loss of chance damages. Loss of chance damages were awarded by first determining that full wrongful death damages would equal $875,000 and then finding that at the time of Defendant’s initial negligence, Plaintiff’s cancer was in Stage 2, giving him a 37.5 percent chance of survival. The loss of chance damages came from calculating 37.5 percent of $875,000. Defendant appealed.
Is a physician liable for damages when his negligence reduces or eliminates a patient’s chance of a more favorable medical result, even where the chances were low to begin with?
(Marshall, C.J.) Yes. A physician is liable for damages when his negligence reduces or eliminates a patient’s chance of a more favorable medical result, even where the patient’s chances were low to begin with. The loss of chance doctrine considers a person’s prospects for survival prior to medical negligence of value, even where those prospects were less than even. If a physician’s negligence reduces or eliminates a patient’s odds of a more favorable outcome, the physician has harmed the patient, and is liable for that harm. This doctrine developed to make up for the gaps in the all-or-nothing rule of tort recovery which required a plaintiff to show that the defendant’s negligence more likely than not caused the ultimate outcome in order to recover damages. Under this rule, a patient with a 51 percent chance of survival before the doctor’s negligence who then dies as a result of the negligence recovers a full award because the doctor’s negligence more likely than not caused the death. Conversely, a patient with a 49 percent chance of survival pre-negligence would not recover at all. This all-or-nothing rule released doctors from liability any time a patient had a less than 50 percent chance of survival, no matter how egregious the negligence.
Defendant argues that the loss of chance doctrine lowers the threshold of proof of causation by lowering the preponderance of the evidence burden. This is unpersuasive, however, because a plaintiff must still establish by a preponderance of the evidence that the defendant caused the injury or death in order to recover. The loss of chance doctrine does not change the standards of causation. This doctrine is a theory of injury, not of causation. The probability of survival is part of the patient’s condition, and when a physician acts negligently and reduces or eliminates it, the patient suffers a real injury. Defendant also argues that this doctrine relies on speculation, but survival rates are based on accepted medical data. Any uncertainty in the data would apply to ordinary medical malpractice actions as much as to loss of chance cases. Finally, Defendant argues that the adoption of this doctrine has broad ramifications across all areas of torts, but this ruling is limited to medical malpractice actions. Loss of chance is a separate, compensable item of damages in medical malpractice actions.
The manner of valuation relies on determining what is being valued and how to calculate a monetary value of the lost chance. What is being valued is lost chances for a more favorable outcome, and that is determined by Plaintiff’s likelihood of surviving for a number of years based upon the medical standard applicable to him. Loss of chance damages are measured as the percentage probability by which Defendant’s negligence reduced the likelihood of a more favorable outcome. The fact finder must 1) calculate the total damages allowed for the injury or death, 2) calculate the patient’s chance of survival before the negligence, 3) calculate the chance of survival resulting from the negligence, 4) subtract the amount in step 3 from step 2, and 5) multiply the amount in step 1 by the percentage in step 4. For example, if 1) full wrongful death damages would be $600,000 and 2) the patient had a 45 percent chance of survival before the negligent conduct, and 3) a 15 percent chance of survival as a result of the doctor’s negligence, 4) the patients chance of survival dropped by 30 percent due to the negligence, and 5) the loss of chance damages would be 30 percent of $600,000, or $180,000. Affirmed.
This was a landmark case in medical malpractice because it rejected the all-or-nothing rule which required a patient to have 50 percent or higher chance of survival to recover. The court found that the all-or-nothing rule gave doctors full immunity for negligence any time a patient had a less than 50 percent chance of survival, no matter how egregious the negligent conduct. Other states have started to adopt this rule as well.