Joseph Grillo, M.D.
Imagine the plight of the unfortunate psychiatric patient who has sustained damage because of the negligence of the attending physician. The path to redress is nearly insurmountable. This patient represents the epitome of the pre-existing condition, or they probably wouldn’t be seeking treatment in the first place. In an area of medicine that is supremely subjective by nature, such harms happen very frequently in my clinical experience. The path to redress is fraught with many more obstacles which I will cover at some other point.
Short of the adolescent or early adult patient, I have rarely seen a patient who didn’t have a past medical history of significance, or in legal parlance, a preexisting condition. They are the unavoidable consequence of being human. This makes it very difficult to tease out the various preexisting conditions from harm for which may bring a plaintiff into the judicial system. While I have no litigation experience, I imagine that sorting out the various preexisting conditions from those caused by tortious acts, allocating responsibility among, and finally affixing a valuation – can be supremely problematic to the plaintiff. On the other hand, if these hurdles can be overcome, the gap in the remedial structure may lessen, and a fair outcome for the injured plaintiff might be attained.
Preexisting conditions are directly proportional to aging. Notwithstanding, the process of establishing causation can be tumultuous.
Traditionally, proof of causation begins with the “but for” or “sine qua non” test. Causation exists if the injury would not have occurred “but for,” or in absence of the physician’s malfeasance. This actual causation test is augmented by the “substantial factor” and, at times, “accelerating factor” tests, the former when two causes would simultaneously produce the damage and the latter when one cause accelerates the damage that was initiated by the former. Of note is that the Third Restatement did away with proximate cause and substantial factor terminology and now applies a two-fold schema – “factual causation” and “harm within the scope of liability,” although Massachusetts continues to describe a negligence claim using the terminology of “proximate or legal cause,” using these terms interchangeably. 1
The problem with the traditional tests as applied to a medical patient is that they are all or nothing, whereas the medical patient is never all or nothing. Unless the harm can be established by a preponderance standard, the patient will lose. What happens when a patient’s diagnosis is missed, and as a result, he suffers harm, perhaps death. This category of error is made frequently. I honestly don’t know how many times I’ve missed diagnoses, but I do know that they happen, not purposely and typically not as a result of deviating from the standard of care. This means that the average physician is well versed in preventative medicine, such as colonoscopy for patients at 50 years of age, chest x-ray for smokers, regular Pap test, etc. When a physician does not order a test that he should know to order, and that results in cancer unfound and premature death, the path to redress is difficult at best. How does one go about establish by a preponderance that the missed colonoscopy referral resulted in premature death? The expert for the defense with invariably argue that adenocarcinoma of the colon is an insidious and smoldering cancer that typically takes up to ten years before it progresses to liver or bone metastases. The defense will further argue that the patient himself was aware that he was due for the procedure. With all or nothing, the patient’s survivors will likely lose. The plaintiff may further claim the procedure was offered and deferred by the patient.
Nationally, there is a trend towards easing causation by what is referred to as “relaxed causation.” Massachusett’s version of relaxed causation has included the Loss of Chance Doctrine. This doctrine seems to me to be somewhat akin to the theory of contributory negligence. Historically, the loss of chance concept had arisen in a variety of contexts, including delayed surgical intervention2, failure to admit from the emergency room3, and failure to transfer a patient4.
Present day, the classic patient/plaintiff would be a cancer patient who dies due to medical negligence. Expert testimony is that the patient had a 40 to 50 percent chance of surviving with prompt diagnosis and treatment. Under the classic principles of causation, the could be no recovery because it was not more probable than not that the patient would be alive absent the failure to diagnose. Loss of chance doctrine would allow for the 40-50 percent chance that death due to the alleged negligence. In fact, recovery could be had for chance of loss of five or ten percent.
Most cases (of which there are few) in Massachusetts have involved various types of cancers. Cancer diagnoses fit nicely into such a schema as loss of chance because cancers are generally staged. Each stage not only spells out the treatment options, but typically there are multiple large scale random, double blind, placebo controlled studies that proscribe appropriate course of treatment, but also accurately affix survival statistics for each stage. This renders the necessary damage calculations fairly straightforward. This means, however, that some extrapolation is required as the original cancer, since it was never diagnosed, will have a stage that is approximated by expert witnesses. The degree of certainty in this approximation, it seems to me, would be arguable.
Matsuyama v. Birnbaum, 452 Mass. 1, (2008), was the first case in Massachusetts to recognize loss of chance as a theory of injury in medical malpractice wrongful death. In this case, the defendant negligently missed a cancer diagnosis. Id. As a result, the patient died prematurely. Id.
Damages were calculated as follows:
- determine the total amount of damages allowable under statute;
- Percent chance of survival before the negligence is subtracted from the percent chance of survival after the negligence.
- That value is used to adjust the actual award (i.e. %difference x the value from step 1).
By way of example, given a patient’s chance of survival at 48% before the negligence, and 28% afterwards. The difference is 20%. If the statute allows for $100,000.00, the award would be 0.28 x 100,000 or $28,000. The plaintiff must still prove by a preponderance standard that the physician’s negligence caused the likelihood of achieving a more favorable outcome to be diminished.
Loss of Chance Doctrine is not always applicable. In Renzi v. Paredes, 452 Mass. 38, 44 (2008) the court rejected loss of chance doctrine citing that “if the physician’s breach of duty destroyed or diminished that chance, as established by credible expert testimony, then the physician has deprived the patient of something of value for which compensation is required.” Id at 45. The rationale here was that the patient’s chance of survival was so much greater that 50% had the cancer been detected when it should have been, that application of loss of chance doctrine was essentially unnecessary. Id. at 47.
As Massachusetts case law progresses, it will be interesting to see the different ways in which loss of chance doctrine will be creatively tried. The potential beyond cancer-related cases seems endless, and the clever attorney is certain to carve out the limits.
1.Tory A. Weigand, Duty, Causation and Palsgraf: Massachusetts and the Restatement (Third) of Torts, 96 Mass. L. Rev. 55, 67-8 (2008) (discussing Massachusetts interpretation of The Third Restatement).
2. Delaney v. Cade, 873 P.2d 175, 178 (Kan. 1994); Olah v. Slobodian, 574 A.2d 411, 415 (N.J. 1990)
3. McBride v. United States, 462 F.2d 72, 74-75 (9th Cir. 1972).
4. Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605, 616 (Ariz. 1984)