Joseph Grillo, M.D.
“The burning candle of life is such a precious
thing in anyone’s existence that no one has the right to extinguish it before
it flickers out into perpetual darkness and oblivion.”
Serious illness and the prospects of end of life are a harrowing time in a person’s life. To this person, how much would an additional chance at survival be worth? Conversely, should a person be entitled to compensation if a physician’s negligence reduces the chance of survival? Loss of chance doctrine addresses this very circumstance. It is premised on the theory that the plaintiff should be compensated when a physician’s negligence results in a reduced chance of survival. Under this doctrine, the lost chance caused by negligence is considered a distinct injury. To be actionable, the diminution of chance must be more than “token” or “de minimis.”
- The “All-or-Nothing” Approach
Under the traditional “all or nothing” approach, the goal is to make a plaintiff whole or, in other words, restore the plaintiff to the position he would be in but for the defendant’s negligence. The plaintiff must prove the five elements of negligence to recover monetary damages: 1) the physician owed a duty of care to the patient; 2) the physician breached this duty; 3) the breach actually caused the patient’s injury; 4) the breach proximately caused the patient’s injury; and 5) the patient suffered damages from the breach. The all or nothing requirement means that the plaintiff must prove these elements by a preponderance of the evidence. Clearly this approach unjustly prevents recovery for plaintiffs whose injury was a loss in chances of survival. Over the past twenty years, courts have utilized the loss of chance doctrine to redress the unfair results stemming from the law’s all-or-nothing approach. The loss of chance doctrine, referred to as the loss chance of survival, or the loss of a chance of recovery, is a relatively new and evolving tort theory of recovery, which allows plaintiffs to seek damages when deprived of some probability of recovery resulting from the physician’s negligence.
Loss of chance occurs when a physician does something wrong, such as failing to diagnose an illness, that causes a statistical decrease in the patient’s chance for survival or for a better outcome.As it is now applied in some jurisdictions, the doctrine is designed to compensate the patient for the lost opportunity of survival caused by the physician’s negligence, by awarding damages based on the value of the opportunity lost.
Loss of Chance Doctrine is unique in that it is a 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. Massachusetts is amongst the states that recognize this doctrine.
Loss of Chance theory is intriguing. It has gained momentum as courts increasingly recognize the inadequacy of the “all-or-nothing” approach to damages. 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 represents 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 worsened, 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.
- History of the Loss of Chance Doctrine
The origin of the loss of chance doctrine can be traced back to an 1867 Ohio Supreme Court ruling on a medical malpractice case. In that case, a physician mistreated a patient with a dislocated shoulder, but argued he should be free from liability because the patient was already injured when he came to him, and thus his mistreatment did not cause the injury. The court disagreed stating that any lack of the proper standard of skill or care which “diminishes the chances of the patient’s recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used, would, in a legal sense, constitute injury.”
The preeminent case on the loss of chance doctrine is Hicks v. United States. In Hicks, the decedent died of a bowel obstruction shortly after being examined and diagnosed with gastroenteritis. The court held the physician violated the reasonable standard of care required of physicians when he failed to diagnose the appropriate illness. The court stated:
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 has 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 to a certainty that the patient would have lived had she been hospitalized and operated on promptly.
Hicks was instrumental in recognizing the credibility of the loss of chance doctrine as it paved the way for other courts to acknowledge the significance of a patient losing a chance to survive. Fifteen years after the decision in Hicks, Professor Joseph King published a widely cited Yale Law Journal article in which he argued that a plaintiff’s loss of chance is a compensable harm that should be recognized as a separate tort. Professor King continued, “The loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should be valued appropriately, rather than treated as an all or nothing proposition.”
- Variations among the Jurisdictions
Throughout the past thirty years, many courts have grown increasingly willing to acknowledge the loss of chance doctrine in tort recovery, yet these courts have been unable to apply a uniform approach to the doctrine. A number of different interpretations have been applied to the loss of chance doctrine including the traditional causation method, the “pure” loss of chance approach, and the substantial loss of chance approach.
- Traditional Causation
Jurisdictions rejecting the loss of chance doctrine do so in favor of the traditional rules of causation. Plaintiffs in these jurisdictions are required to show the negligent act by the physician “more likely than not caused the injury thereby allowing for recovery.” In such jurisdictions, if a plaintiff is able to show the patient had a greater than fifty percent chance of survival, he is more likely to succeed on his claim because of the reduced uncertainty as to whether an existing illness or the physician’s negligence caused the injury. A plaintiff in a case where the patient had less than a fifty percent chance of recovery is less likely to recover damages because the patient would likely not have recovered even if reasonable medical care was given.
- Pure Loss of Chance Approach
Of the jurisdictions adopting the loss of chance approach, variations of the doctrine are applied. One approach is the pure loss of chance. This approach views traditional causation standards as overly harsh and allows the plaintiff to recover when he is able to prove that the physician’s conduct deprived the patient of a better end result. Here, courts view the pure loss of chance as the actual injury suffered by the patient. Under the pure loss of chance approach, plaintiffs are still required to apply the more probable than not method of causation, but the compensable interest becomes the loss of chance, rather than the actual injury or death.
In calculating damages under this approach, courts adopt a percentage probability test where the probability of survival is shown in the amount of damages awarded to the plaintiff. Thus, if a plaintiff had a forty-percent chance of survival based on proper care and treatment, under pure loss of chance, the patient would recover damages equal to the percentage of chance lost resulting from the negligence.
This approach is illustrated in the New Hampshire Supreme Court decision of Lord v. Lovett. In that case, the plaintiff suffered a broken neck in a car accident, and was treated in the Lakes Region General Hospital. The plaintiff alleged defendants negligently misdiagnosed her spinal cord injury, and thus failed to properly immobilize and administer steroid therapy, causing her to lose the chance of a “substantially better recovery.” The court held a “plaintiff may recover for a loss of opportunity injury in medical malpractice when the defendant’s alleged negligence aggravates the plaintiff’s preexisting injury such that it deprives the plaintiff of a substantially better outcome.” The court recognized that this loss of opportunity of achieving a better outcome, as opposed to the entire injury, is the cognizable injury suffered by the patient.
- The Substantial Loss of Chance Approach
A second method of applying the loss of chance doctrine is through the loss of a substantial chance approach. This approach allows recovery when the plaintiff proves that the defendant’s negligent action(s) resulted in a substantial lost chance of recovery or survival to the patient. At trial, plaintiff is required to provide evidence demonstrating the physician’s tortious action substantially decreased the opportunity for survival or recovery, at which point the jury will decide if the defendant’s actions proximately caused the plaintiff’s injury or death. Unlike the pure loss of chance approach, the loss of a substantial chance approach views the ultimate harm as the patient’s death.
There are several interpretations of what constitutes a “substantial” loss of chance. One interpretation of a substantial possibility of loss occurs when the lost opportunity was less than fifty percent. Another interpretation is that loss of substantial chance occurs when the loss of chance ranges from less than fifty percent to greater than five percent. A third interpretation is that substantial loss of chance occurs only when the loss is greater than fifty percent. The following jurisdictions have adopted the substantial chance approach: Arkansas, Kansas, Oklahoma, Nevada, and New York.
In McKellips v. Saint Francis Hospital, Inc., the Oklahoma Supreme Court applied the loss of a substantial chance approach. In McKellips, the decedent went to the emergency room complaining of pains coming from both sides of his chest. After examination and testing, the physician diagnosed the patient’s condition as gastritis and released him. Later that evening, the patient suffered cardiac arrest and died. The plaintiffs brought a wrongful death action alleging the decedent’s premature release from the hospital resulted in a loss of chance of survival. In adopting the loss of chance doctrine, the court applied the substantial chance approach. The court held:
“In medical malpractice cases involving the loss of a less than even chance of recovery or survival where the plaintiff shows that the defendant’s conduct caused a substantial reduction of the patient’s chance of recovery or survival, irrespective of statistical evidence, the question of proximate cause is for the jury.” One of the more favorable aspects of this approach is that it prevents a health care provider from avoiding responsibility for negligent conduct simply by stating, “the patient would have died anyway, when that patient had a reasonable chance to live.”
This point is illustrated in Herskovits v. Group Health, where a physician was sued for failing to detect the decedent’s lung cancer. The decedent’s estate alleged that because of the physician’s negligence, the decedent lost a fourteen percent chance of surviving five years.67 The court held the loss of chance of survival from thirty-nine to twenty-five percent is a substantial and compensable loss.
- How loss of chance doctrine is applied in Massachusetts
The sentinel case in Massachusetts is Matsuyama v. Birnbaum. 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 gastric 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 cancer-tumor 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. The court went on to hold that he key is the reliability of the evidence available to the fact finder.
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.
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.
- 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.
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 arguably, 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.
Proponents of loss-of-chance argue that courts
should treat the reduction in chances of a better outcome as a compensable
injury. Then, if a causal connection between the negligent misdiagnosis and a
lost chance can be established on the requisite balance of probabilities
standard of proof, the patient will at least be compensated for their provable
loss: the reduction in chances of a better outcome. This way, both the goal of
corrective justice, as well as the traditional approach to tort liability, can
remain undisrupted. As Professor Lara Khoury succinctly summarizes, “this
approach is prima facie compelling because it confirms the apparent
conceptual validity of the notion [of loss of chance] and its conformity with the rules of civil
 Valdez v. Lyman-Roberts Hosp., Inc., 638 S.W.2d 111, 116 (Tex. Ct. App. 1982).
 Joseph H. King, Jr., “Reduction of Likelihood” Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev. 492 (1998) (King II).
 Sarah E. Bushnell, Loss of Chance New Medical Malpractice Risk in Minnesota, Bench & B. Minn., November 2013, at 18.
 See Restatement (Second) of Torts § 901 (1979). The Restatement sets out four purposes of tort law: “(a) to give compensation, indemnity or restitution for harms; (b) to determine rights; (c) to punish wrongdoers and deter wrongful conduct; and (d) to vindicate parties and deter retaliation or violent and unlawful self help.”
 See, e.g., Gooding v. Univ. Hosp. Bldg. Inc., 445 So. 2d 1015, 1018 (Fla. 1984) (setting forth elements in medical malpractice claim); Robert A. Reisig, Jr., Note, The Loss of a Chance Theory in Medical Malpractice Cases: An Overview, 13 Am. J. Trial Advoc. 1163, 1164 (1990).
 See McMackin v. Johnson County Healthcare Ctr., 73 P.3d 1094, 1099 (Wyo. 2003) (cautioning all-or-nothing approach allows doctors to escape liability);
 Id. at 1096
 Joan F. Renehan, A New Frontier: The Loss of Chance in Medical Malpractice Cases, Boston Bar Journal 14 (May/June 2009), http:// www.bostonbar.org/pub/bbj/bbj0506_09/bbj0506.pdf; see also infra Part II.A.
 David A. Fischer, Tort Recovery for Loss of Chance in Medical Malpractice, 36 Wake Forest L. Rev. 605, 605 (2001).
 See Ralph Frasca, Loss of Chance Rules and the Valuation of Loss of Chance Damages, 15 J. Legal Eco. 91, 93 (2009).
 Craig v. Chambers, 17 Ohio St. 253, 257-59 (1867).
 id. at 258
 id. at 261
 368 F.2d 626 (4th Cir.1966)
 Id. at 632
 Id. at 634.
 See Kallenberg v. Beth Israel Hospital, 45 A.D.2d 177 (1974). (In Kallenberg, the decedent was brought to the hospital, but did not receive the necessary medication for her condition. At trial, expert testimony demonstrated that if the decedent had received the necessary medication, she would have had between a twenty and forty percent chance of survival. The jury held for the decedent’s family, and the appellate court held that such a finding was correct because “had Mrs. Kallenberg been properly treated with the indicated medication of choice, her blood pressure could have been kept under control, and she might have improved sufficiently … to undergo surgery and make a recovery.”)
 Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1354 (1981).
 Michelle L. Truckor, The Loss Of Chance Doctrine: Legal Recovery For Patients On The Edge Of Survival, 24 U. Dayton L. Rev. 349, 352 (1999).
 D. Hodson, Annotation, Medical Malpractice: “Loss of Chance” Causality, 54 A.L.R. FED 4th. 10, § 2a (1987).
 Tory A. Weigand, Loss of Chance in Medical Malpractice: The Need for Caution, 87 Mass. L. Rev. 3, 17 (2002), http:// www.massbar.org/publications/massachusetts-law-review/2002/v87-n1/loss-of-chance-in-medical. (Weigand argues that loss of chance is inconsistent with Massachusetts’s basic statutory structure, as the claimant is not seeking redress for the death but for a diminishment in the chances of survival.)
 id. at 31
 Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993)
 id. at 609
 770 A.2d 1103, 1106-08 (N.H. 2001)
 See Lord v. Lovett, 770 A.2d 1103, 1106-08 (N.H. 2001);
 id. at 1118
 Roberson v. Counselman, 686 P.2d 149 (Kan. 1984)
 id. at 167
 id. at 169
 id. at 171
 Brian Casaceli, Losing A Chance to Survive: An Examination of the Loss of Chance Doctrine Within the Context of A Wrongful Death Action, 9 J. Health & Biomedical L. 521, 552 (2014)
 See McKellips v. Saint Francis Hospital, Inc., 741 P.2d 467 (Okla. 1987).
 Id. at 470. (The patient’s family had a history of heart disease, but the patient did not suffer from it himself.)
 id.at 477
 Herskovits v. Group Health Coop. of Puget Sound, 664 P.2d 474, 475 (Wash. 1983).
 452 Mass. 1, 5 (2008)
 id.at 7
 id.at 8
 id.at 9
 id.at 10
 id.at 12
 id. at 14. (Even though the terms of the Massachusetts’ statute did not provide the plaintiffs with any right to recover loss of chance of survival damages under the wrongful death statute, the court allowed recovery because they viewed allowing recovery as within the natural development of the common law of wrongful death. See id. at 838. The court further remarked, “[i]n a loss of chance wrongful death case … a plaintiff must show that her prospects for survival were diminished from what they would otherwise have been, and the magnitude of that diminution will determine damages.” id. at 838. The defendant will only be responsible for those damages he caused. id.)
 id.at 415