Loss of Chance Doctrine – and the Rightful Position: The Basics

jgrillo1@umassd.edu

Historical Perspective

The origins of the “loss of chance” doctrine are difficult to pinpoint but appear to include a handful of early tort cases,1 the “rescue” doctrine, certain contract cases,2 the Restatement (Second) of Torts,3 Hicks v. United States,4 and a 1981 Yale Law Review article.5 

Hicks v. United States

The 1966 Fourth Circuit decision in Hicks is considered the seminal case on loss of chance. There, the decedent died of a bowel obstruction shortly after being examined and released by a physician at a naval base dispensary, who had diagnosed the decedent as having gastroenteritis.6 The court held that the physician had violated the applicable standard of care and that the plaintiff did not have to “show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.”7

Quoting the noteworthy dictum:

When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show a certainty that the patient would have lived had she been hospitalized and operated on promptly. 8

Loss of Chance Doctrine is a rather unique theory of both causation and remedy. It is part of a trend in American jurisprudence which has been coined “relaxed causation,” which represents efforts to ease the causation burden in certain types of tort and business cases.

While Massachusetts is amongst the states that recognize this doctrine, not all jurisdictions recognize a right to recover for loss of chance, and those that do support such claims approach the issue in different ways.

Loss of Chance theory is intriguing. It is not solely a theory of factual causation, but rather a different way of looking at damages. In this case, the chance of securing a successful result is regarded as something of value, the loss of which is the actual damage.

Instead of the usual “but-for” causation, the plaintiff shows – from a different angle – that, “but for” the defendant’s tortious conduct, the “valuable chance” would not have been lost.

In the typical case, the patient alleges that better results would have occurred if the disease or condition had been properly diagnosed and treated more promptly than it actually was. Although there is a chance that the patient would have died or the condition would have worsened in any event, the patient alleges that timely treatment would have improved his or her chances, regardless of how low the chance of cure was at the time of the defendant’s failure to detect the disease. As I am alluding to – the doctrine is most commonly found in actions based on a failure to diagnose.

How it works in Massachusetts

The sentinel case in Massachusetts is Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819 (2008).

Over a period of 3 years Kimiyoshi Matsuyama, a 42 year-old male complained of gastric distress dating back to 1988. A Japanese immigrant, he was at increased risk for gastric cancer based on ancestry, diet and tobacco use. Such risk factors are known to most general practitioners; particularly the dietary intake of cured and smoked ethnic foods.

His first doctor visit was July, 1995. He offered a history and complained of symptoms that should have immediately raised an eyebrow of suspicion and a referral to a gastroenterologist. Nevertheless, as the court pointed out, Dr. Birnbaum never ordered the requisite testing and workup that any competent physician would have done. Instead he was dismissive and made the diagnosis of gastrointestinal reflux and prescribed over-the-counter remedies.

The next doctor visit was October, 1996. The same symptoms were given and a similar course was followed. Similar visits were noted on September, 1998, August 1998, and November, 1998; each time with progressively worsening symptoms.

The tragedy in this case is that a Japanese immigrant who had pathognomonic clinical picture for gastric cancer was largely dismissed in a setting where a referral to the proper specialist is routine and the procedurally simple.

Nevertheless, finally in May, 1999, Birnbaum was faced with severe symptoms and he ordered appropriate testing. The finding was advanced-stage a gastic cancer. The patient succumbed to the cancer one year later.

At the wrongful death trial, the first expert testified that Birnbaum breached expected standard of care by not identifying the cancer in 1995 when it would have been curable at almost 100%. By not facilitating the diagnosis, Dr. Birnbaum’s negligence resulted in advanced and metastatic disease not curable and caused Matsuyama’s premature death.

Another expert presented TNM classification data (discussed infra) demonstrating that Matsuyama’s loss of chance amounted to 37.5%. The court determined that the full wrongful death damages was $875,000; awarding $328,125. The court clearly acknowledged that Dr. Birnbaum should not be able to avoid being held accountable.

In this case, a loss of chance award was the first in Massachusetts, thus acknowledging the inadequacy of the all or nothing rule. In so doing, the court had to overcome certain criticisms –  the contention that a statistical likelihood of survival is but a “mere possibility” and therefore speculative. Id. at 18. The court went on to hold that he key is the reliability of the evidence available to the fact finder. Id.

Now that medical science has developed credible methods of quantifying the extent to which the malpractice damaged the patient’s prospects for survival, and in light of the strong public policy favoring compensation for victims of medical malpractice and the deterrence of deviations from appropriate standards of care, loss of chance of survival rightly assumes a place in our common law of wrongful death, and we so hold.

Matsuyama v. Birnbaum, 452 Mass. 1, 23–24.

The following is the formulation that the court applied.

First: The fact finder must calculate the total amount of damages allowable for the death under the wrongful death statute (M.G.L.A. c. 229, § 2) or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which a decedent would be entitled if the case were not a loss of chance case, that is, the full amount of compensation for the decedent’s death or injury.

Second: The fact finder must next calculate the patient’s chance of survival or cure immediately preceding (“but for”) the medical malpractice.

Third: The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice.

Fourth: The fact finder then subtracts the percentage chance of survival derived in step 3 from the percentage chance of survival derived in step 2.

Fifth: The fact finder must than multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damage award for loss of chance.

Next, where does survival data come from?

The successful application of loss-of-chance doctrine is predicated on survival data that is both precise and accurate. How is it derived?

The answer is not simple, but I will make it so by taking a ‘broad stroke’ approach. As you may realize, the utility of such a calculation is dependent on how well speculative predictions apply to individual patients.

By way of example, we will look at breast cancer. When first discovered, a tumor is “staged,” which involves a classification strategy of the patient’s disease. Once we know the stage, we also know the chance of survival. The standard is to discuss percent survival in terms of 5-year survival. This is because it is easier for medical science to conduct studies that end at a finite period than to conduct endless longitudinal studies. In addition, most often, if a patient survives for five years, he will likely not die from this particular cancer.

For these reasons, if a patient survives a cancer for five years, they are considered cured. This is a misnomer, but for now consider it a ‘broad-stroke’ truth. Staging is done via a what’s referred to as the TNM system.

T stands for tumor size. In general, the larger tumor purports a worse prognosis. Next is N, which stands for lymph nodes (meaning the number of nodes involved.) Lymph node involvement is often a negative predictor. In general, the more nodes involved, the worse the prognosis. To complicate the matter, we also evaluate and stage according to the regional spread – such that lymph node involvement below the diaphragm is worse than involvement above the diaphragm.  Finally, the M stands for metastases. A tumor may progress from being non-metastatic, it can be locally invasive (confined to the immediate region of the primary tumor), or it may spread to distant sites. The latter is worse than the former, while the number of metastases is also a negative predictor.

That may seem complicated, but in a simplified version – a TNM classification may look something like T2, NO, MO, which means a 2 cm primary mass, with no nodal involvement and no metastasis. Based on this classification, the cancer is then ‘staged.’ Staging takes into account, in addition to the TNM classification, the tumor morphology. By this, we look at the gross architecture of the mass. There are different types – some worse than others. A few included ductal carcinoma, tubular, papillary and medullary. Each behave differently. Next staging also takes into account the presence or absence of tumor surface markers. There are two major markers. Both are major predictors of survival. If a tumor has a certain marker, it might be sensitive to certain anti-cancer drugs. In the end, all of this information is tabulated patient’s risks are stratified.

The TNM criteria, morphology and surface markers all go to defining the tumor’s stage. The tumor stage is compared to predictive models. The data from the predictive model is derived from hundreds of thousands of pooled cohort data. In the end, while not absolute, the data is very accurate. Individual patient characteristics are certainly important, however, most often the predictive models hold true for most cancers. And this forms the basis for applying loss-of-chance doctrine.

Obviously, expert testimony is required to determine what statistical rates of survival apply in what circumstances, and to apply those rates to the particular clinical circumstances of the patient.

Policy

From a policy viewpoint, loss-of-chance doctrine is grounded in the justification of deterring negligent physician conduct and compensating for real harms to patients that happen to fall the threshold of traditional tort doctrine. I am not fully convinced that the mathematical discounting of the subjective value of human life is ideal, however, it is certainly an improvement on the status quo of no recovery for certain groups of cases.

Dr. Birnbaum did not cause the condition to begin with, and aguably, did not cause the harms attributable to the condition. Also arguable is that attributing the full loss to defendant is unjust. But his wrong did deprive plaintiff of opportunities that might (or might not) have prevented the harm. Thus, zero recovery seems to unpleasant extreme.

Consider that a cancer patient who has less than a 50% chance of survival. The prospects of end of life are harsh. Many of us will face this. It is a disenfranchising and frightening position. Imagine if those odds are reduced due to negligence. The possible imminent loss of life now becomes likely. It seems more than reasonable that the judicial system recognize this and attempt to do their part in redressing this injury.

  1. See e.g., Burk v. Foster, 69 S.W. 1096, 1098 (Ky. 1902); Craig v. Chambers, 17 Ohio St. 253, 258 (1867).
  2. See e.g., Wachtel v. Nat’l Alfalfa Journal Co., 176 N.W. 801, 804 (Iowa 1920); Chaplin v. Hicks, 2 K.B. 786 (Eng. C.A. 1911).
  3. RESTATEMENT (SECOND) OF TORTS, § 323(a) (1965).
  4. 368 F.2d 626, 632 (4th Cir. 1966).
  5. King, Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Injuries and Future Consequences, 90 YALE L.J. 1353, 1355 n.7 (1981) (hereinafter King, Causation).
  6. 368 F.2d 626, 628-29 (4th Cir. 1966).
  7. Id. at 632
  8. Id.
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