Mass SJC Allows "Loss of Chance" Recovery

Bruce Bierhans

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In a spectacular decision this week affirming victims rights, the Massachusetts Supreme Judicial Court ruled that damages are recoverable where a physicians negligence reduced the decedents chance of survival from a better than even chance to less than even.

Until this decision, it has been unsettled in Massachusetts whether or not a patient could recover where the negligence of the physician contributed to a loss of life expectancy that was less than 50%. For example, if a failure to diagnose breast cancer resulted in a decreased chance of survival of 20% (i.e from 60%-40%), it was argued that there should be no recovery. The decision in the Matsuyama case confirms that a loss of chance of less that 50% is still meaningful to the individual confronted with that loss of chance and that compensation should be awarded.

For those of us that try cancer misdiagnosis cases, this decision was long awaited. The court wrote that "Where a physicians negligence reduces or eliminates the patients prospects for achieving a more favorable outcome, the physician has harmed the patient and is liable for damages."