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
	By ANTHONY J. SEBOK
	Tuesday, Aug. 5, 2008

The case, Matsuyama v. Birnbaum, 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 “gastric distress” for years. Birnbaum noted Matsuyama’s complaints and recommended that he take over-the-counter medicines to relieve the symptoms of heartburn.

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’s 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.

The Lawsuit, the Jury’s Verdict, and the SJC’s Result

In 2000, Matsuyama’s 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’s 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 “Stage 2” gastric cancer, which meant that, even with timely treatment, he would have had only a 25%-40% chance of survival. In other words, Birnbaum’s last-ditch defense was that even if he had done everything Matsuyama’s widow claimed he should have done, Matsuyama would probably still have died by 1999.

The jury found Birnbaum liable. It held, first, that Birnbaum committed malpractice by not diagnosing Matsuyama’s cancer prior to 1999. Second, it held that Birnbaum’s malpractice was a “substantial factor” 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’s estate $160,000. Third, it held that Birnbaum’s malpractice reduced Matsuyama’s chance of survival (that is, of “beating” 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%.

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’s instructions.

The Legal Doctrine at Issue: “Loss of a Chance”

The approach adopted by the trial judge in the jury instructions concerning the wrongful death claim by Matsuyama’s widow is commonly known as “loss of a chance.” The idea was first introduced into American law through a series of law review articles published in the 1970’s and 1980’s, 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 “loss of a chance” 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.

The problem which “loss of a chance” 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’s breach of duty “caused” the injury about which the plaintiff is now suing to be redressed.

“But-For Causation” As Compared to “Loss of a Chance”

I’ve put the word “caused” in quotation marks here because “causation” has a special meaning in tort litigation. Usually, absent special circumstances, courts require that the plaintiff satisfy the test of “legal causation” by means of the “but for” test. That is, the plaintiff has to present evidence to the factfinder that, “but for” the defendant’s breach of duty, the plaintiff’s injury would not have happened.

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.

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 “Was the breach of duty a but-for cause?” 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 “but-for” causes of their untimely deaths. The problem is that we don’t have the technology to determine which three out of the eight are those cases, and we never will.

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 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.

Why Scholars Endorsed the “Loss of a Chance” Theory

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. Let’s suppose that, before going in to the office, all eight doctors knew that even if they were one of the three whose carelessness “really” caused their patient’s 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.

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 “killed” the patient, we may know that the negligent doctor’s actions caused a “wrongful loss.” And what might this loss consist of? Well, it might be simply this: A doctor’s duty to a patient is literally based on his or her special obligation to “care” for the patient’s 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’s 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 “takes away” from the patient when he or she is negligent.

The Massachusetts SJC’s Decision: Its Strengths and Weaknesses

The Massachusetts SJC reviewed this history, as well as the decisions by the very large number of state supreme courts that have adopted “loss of a chance” as a solution to the problem posed by the conventional “but-for” test. (I am a little skeptical of the SJC’s claim that twenty states have already adopted “loss of a chance,” 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.

The court held that, in medical malpractice cases, at least, where a physician’s carelessness can be proven to have “caused” 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 “but-for” cause of his or her failure to recover.

I think that the SJC’s 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.

First, if the court truly believes the corrective justice argument that it cites, why should patients whose misdiagnosis is later proven to be the “but-for” cause of death be allowed to recover 100% of their wrongful death damages?

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

Put another way, if “loss of a chance” is really about the loss of a chance, shouldn’t the defendant doctor pay less than 100% of wrongful death damages in cases in which it can be proven that the doctor’s 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?

Second, the Massachusetts court, like many (but not all) academic commentators, insisted that “loss of a chance” 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?

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’s breach of duty (say, the release of a carcinogen into groundwater) was a but-for cause, or even a substantial factor, in the plaintiff’s 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’t 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’t 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?

I am not sure that my objections are fatal to the adoption of “loss of a chance” in the Matsuyama 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.

Anthony 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.