{"id":52527,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/ability-fl-prod.internetbrands.com\/ability-legal\/supreme\/legal-commentary\/massachusetts-supreme-judicial-court-embraces-the-loss-of-a-chance-doctrine-why-this-key-torts-decision-may-convince-other-state-supreme-courts-to-follow-suit.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"massachusetts-supreme-judicial-court-embraces-the-loss-of-a-chance-doctrine-why-this-key-torts-decision-may-convince-other-state-supreme-courts-to-follow-suit","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/massachusetts-supreme-judicial-court-embraces-the-loss-of-a-chance-doctrine-why-this-key-torts-decision-may-convince-other-state-supreme-courts-to-follow-suit.html","title":{"rendered":"Massachusetts’ Supreme Judicial Court Embraces the “Loss of a Chance” Doctrine: Why This Key Torts Decision May Convince Other State Supreme Courts to Follow Suit"},"content":{"rendered":"\n
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Massachusetts’ Supreme Judicial Court Embraces the “Loss of a Chance” Doctrine: Why This Key Torts Decision May Convince Other State Supreme Courts to Follow Suit<\/h1><\/td>\n <\/tr>\n

By ANTHONY J. SEBOK <\/h2>
<\/a><\/td>\n <\/tr>\n

Tuesday, Aug. 5, 2008<\/td>\n\n <\/tr>\n <\/table>\n\n\n\n\n

On July 23, the highest court in Massachusetts, the Supreme Judicial Court (SJC), unanimously held that the doctrine of \u201closs of a chance\u201d is part of that state\u2019s common law of torts. This is an important decision for a number of reasons, and I predict that the Massachusetts decision will influence other state supreme courts. In this column, I will review the court\u2019s reasoning.<\/p> \n<\/span>\n\n \n \n\n\n

The Case\u2019s Tragic Facts<\/strong><\/p>\n <\/span>\n

The case, Matsuyama v. Birnbaum<\/a><\/em><\/strong>, involves facts tragically familiar to anyone who follows medical malpractice law. Robin Matsuyama, aged 42, saw Dr. Neil Birnbaum for a routine physical exam in 1995. Matsuyama reported that he had suffered \u201cgastric distress\u201d for years. Birnbaum noted Matsuyama\u2019s complaints and recommended that he take over-the-counter medicines to relieve the symptoms of heartburn.<\/p>\n

In reality, Matsuyama was suffering from early symptoms of gastric cancer. Over the next few years, he continued to see Birnbaum and Birnbaum noted a number of disparate symptoms which, in retrospect, reflected the growth of the cancer. Unfortunately, Birnbaum did not diagnose Matsuyama\u2019s cancer until 1999, when it was too late. A few months after the gastric cancer was diagnosed, Matsuyama died, leaving behind a wife and a son who was still a minor.<\/p>\n

The Lawsuit, the Jury\u2019s Verdict, and the SJC\u2019s Result<\/strong><\/p>\n

In 2000, Matsuyama\u2019s widow filed a medical malpractice action against Birnbaum. Birnbaum denied that he was negligent in failing to diagnose the cancer until 1999. He also argued that, even had he been negligent, his malpractice was not the legal cause of Matsuyama\u2019s death (and the subsequent loss to his family) because the expert testimony provided at trial seemed to indicate that even in 1995, Matsuyama was already suffering from \u201cStage 2\u201d gastric cancer, which meant that, even with timely treatment, he would have had only a 25%-40% chance of survival. In other words, Birnbaum\u2019s last-ditch defense was that even if he had done everything Matsuyama\u2019s widow claimed he should have done, Matsuyama would probably still have died by 1999. <\/p>\n

The jury found Birnbaum liable. It held, first, that Birnbaum committed malpractice by not diagnosing Matsuyama\u2019s cancer prior to 1999. Second, it held that Birnbaum\u2019s malpractice was a \u201csubstantial factor\u201d in causing Matsuyama pain and suffering (that is, the months of suffering caused by the cancer that he endured before he died) and awarded Matsuyama\u2019s estate $160,000. Third, it held that Birnbaum\u2019s malpractice reduced Matsuyama\u2019s chance of survival (that is, of \u201cbeating\u201d the cancer) by 37.5%, and awarded his widow $328,125, which was based on the total amount of wrongful death damages she would have normally received ($875,000) reduced by 67.5%. <\/p>\n

Birnbaum appealed to the SJC, which took the case, presumably because of the very significant issues of law it raised. (Like the U.S. Supreme Court, the SJC chooses which cases it will hear.) The court upheld the trial verdict and the judge\u2019s instructions.<\/p>\n

The Legal Doctrine at Issue: \u201cLoss of a Chance\u201d <\/strong><\/p>\n

The approach adopted by the trial judge in the jury instructions concerning the wrongful death claim by Matsuyama\u2019s widow is commonly known as \u201closs of a chance.\u201d The idea was first introduced into American law through a series of law review articles published in the 1970\u2019s and 1980\u2019s, and it has been a staple of debate among tort theorists ever since. In fact, I am sure that almost every law professor views the opportunity to teach \u201closs of a chance\u201d to first-year students with relish, since it is one of the few moments where an almost intractable problem in the courtroom can be solved by the application of pure theory.<\/p>\n

The problem which \u201closs of a chance\u201d solves is simple to understand. Negligent diagnosis is only one example of a dilemma that courts often face: Although the court is reasonably certain that the defendant breached a duty to the plaintiff, the court cannot be reasonably certain that the defendant\u2019s breach of duty \u201ccaused\u201d the injury about which the plaintiff is now suing to be redressed.<\/p>\n

\u201cBut-For Causation\u201d As Compared to \u201cLoss of a Chance\u201d<\/strong><\/p>\n

I\u2019ve put the word \u201ccaused\u201d in quotation marks here because \u201ccausation\u201d has a special meaning in tort litigation. Usually, absent special circumstances, courts require that the plaintiff satisfy the test of \u201clegal causation\u201d by means of the \u201cbut for\u201d test. That is, the plaintiff has to present evidence to the factfinder that, \u201cbut for\u201d the defendant\u2019s breach of duty, the plaintiff\u2019s injury would not have happened. <\/p>\n

There are many reasons why the but-for test can be too high a hurdle for the plaintiff. Sometimes there may be more that one independent cause of an accident, as when two huge fires independently reach the location of the hapless plaintiff at the very same time. In such cases, we might say that, as a philosophical matter, neither cause could be a but-for cause. <\/p>\n

Another source of difficulty for the plaintiffs trying to prove a but-for cause come from limitations of factual knowledge and the cost and difficulty of obtaining that knowledge. Sometimes there really is an answer to the question \u201cWas the breach of duty a but-for cause?\u201d but there is no practical way to get to the answer. Misdiagnosis cases fall within this second category. If it is true that, for every eight misdiagnosed Stage 2 gastric cancers, three could gave been cured, then it is, in fact, the case that three doctors who breached their duty to their patients were the \u201cbut-for\u201d causes of their untimely deaths. The problem is that we don\u2019t have the technology to determine which three out of the eight are those cases, and we never will. <\/p>\n

Thus, according to the law of legal causation as it conventionally developed, a judge would be obliged to hold that, as a matter of law none<\/u> of the eight negligent doctors could be held liable to any of the eight patients. For a lot of tort scholars, this seemed wrong for two reasons.<\/p>\n

Why Scholars Endorsed the \u201cLoss of a Chance\u201d Theory <\/strong><\/p>\n

First, for those scholars who saw the point of tort law as primarily about deterrence, the conventional application of the but-for test in these cases clearly would result in underdeterrence.<\/em> Let\u2019s suppose that, before going in to the office, all eight doctors knew that even if they were one of the three whose carelessness \u201creally\u201d caused their patient\u2019s death, they would never be held liable. If so, then the threat of liability would be reduced to zero, and the value of deterrence in tort law would be blunted. Doctors facing a packed waiting room would have less incentive to spend the time to quiz a given patient at length to ascertain whether a particular set of symptoms might indicate the rare case of gastric cancer. In addition, doctors would have less incentive to order more tests even if it meant fighting with an insurance company that kept pointing out that gastric cancer is rare. <\/p>\n

Second, for those tort scholars who are not convinced that the primary goal of tort law should be deterrence (even if deterrence is a useful and welcome side-effect), there is still something about the operation of the conventional but-for causation rule in these misdiagnosis cases that seems morally wrong. A corrective justice theorist, for example, might reason this way: Even if we will never know if the breach of duty \u201ckilled\u201d the patient, we may know that the negligent doctor\u2019s actions caused a \u201cwrongful loss.\u201d And what might this loss consist of? Well, it might be simply this: A doctor\u2019s duty to a patient is literally based on his or her special obligation to \u201ccare\u201d for the patient\u2019s well-being. Many patients go to doctors when they are already ill, and they know, of course, that they might never recover. The reason they put themselves in their doctor\u2019s hands (to put it crassly, the reason they pay the doctor, or have someone pay the doctor) is so that their chance of recovery may be improved. And it is exactly that improved chance which a negligent diagnostician \u201ctakes away\u201d from the patient when he or she is negligent.<\/p>\n

The Massachusetts SJC\u2019s Decision: Its Strengths and Weaknesses<\/strong><\/p>\n

The Massachusetts SJC reviewed this history, as well as the decisions by the very large number of state supreme courts that have adopted \u201closs of a chance\u201d as a solution to the problem posed by the conventional \u201cbut-for\u201d test. (I am a little skeptical of the SJC\u2019s claim that twenty states have already adopted \u201closs of a chance,\u201d but that is not really important at the moment.) Moreover, the SJC adopted both the deterrence and corrective justice arguments as rationales for rejecting the conventional rule. <\/p>\n

The court held that, in medical malpractice cases, at least, where a physician\u2019s carelessness can be proven to have \u201ccaused\u201d the loss of a chance of recovery by a patient from an illness for which the patient has sought treatment, the patient may recover damages even if he or she cannot prove that the loss of the chance was the \u201cbut-for\u201d cause of his or her failure to recover.<\/p>\n

I think that the SJC\u2019s position is reasonable. Certainly, the court offers a coherent and plausible defense of its reasons for adopting loss of a chance. Where the court falls short, however, is in two areas. I will raise each briefly.<\/p>\n

First, if the court truly believes the corrective justice argument that it cites, why should patients whose misdiagnosis is later proven to be the \u201cbut-for\u201d cause of death be allowed to recover 100% of their wrongful death damages? <\/p>\n

The Massachusetts court followed virtually every scholar who has written on this topic by endorsing the trial judge\u2019s idea that Matsuyama\u2019s widow should receive .375 x $875,000, on the grounds that Birnbaum\u2019s negligence took from him a 37.5% chance of survival. However, what if Matsuyama\u2019s widow had been able to prove that Birnbaum\u2019s negligence decreased his patient\u2019s chance of recovery by 67.5%, or 80% ? It is black-letter law that Matsuyama\u2019s widow then would receive $875,000 \u2013 not 67.5% or 80% of $875,000. Why? <\/p>\n

Put another way, if \u201closs of a chance\u201d is really about the loss of a chance<\/u>, shouldn\u2019t the defendant doctor pay less than 100% of wrongful death damages in cases in which it can be proven that the doctor\u2019s breach of duty might not have been the cause of death, even if it is proven that the breach of duty was more than likely the cause of death?<\/p>\n

Second, the Massachusetts court, like many (but not all) academic commentators, insisted that \u201closs of a chance\u201d is only applicable to the medical malpractice context. But if they really believe the deterrence and theory that they cite, why should this limitation be imposed? <\/p>\n

Many toxic tort cases are lost by plaintiffs on summary judgment because the plaintiff cannot convince the court that he or she will be able to demonstrate to the factfinder that the defendant\u2019s breach of duty (say, the release of a carcinogen into groundwater) was a but-for cause, or even a substantial factor, in the plaintiff\u2019s cancer. This is because cancer, which is a mysterious and naturally-occurring disease, often strikes even in the absence of the release of toxic substances. And yet, why shouldn\u2019t a company that increases the risk of cancer of the residents of a town by 20% be held liable for that increase? If the company is not, and is held liable only when it is proven to have contributed to the cancer, why won\u2019t a rational polluter understand that most of the time when it pollutes, it will not be held liable for the cancers it causes, and accordingly be comfortable with creating a higher level of pollution?<\/p>\n

I am not sure that my objections are fatal to the adoption of \u201closs of a chance\u201d in the Matsuyama<\/em> case. After all, the perfect should not be the enemy of the good. However, if the case is to have to significant influence that I think it deserves to have, then the questions I have raised will have to be answered at some point, either by this court or another equally thoughtful state supreme court.<\/p>\n

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\n\n\n<\/a>\nAnthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site. \n

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