MASSACHUSETTS RECOGNIZES THE LOSS OF CHANCE DOCTRINE IN MEDICAL MALPRACTICE CASES

January 30th, 2013 by Bergstresser & Pollock

In a typical wrongful death case, a plaintiff must prove that the negligence of defendant more likely than not caused the decedent’s death. In a medical malpractice case, an individual may start out with a chance of survival less than 50% because of his or her medical condition. If the medical care provider’s negligence further reduces the individual’s chance of survival, a plaintiff can still recover under what is called the loss of chance doctrine. The rationale for permitting recovery in these circumstances is that a person’s prospects for surviving a serious medical condition is something of value, even if the possibility of recovery was less than even, prior to the physician’s tortious conduct. The Massachusetts high court has recently expanded the scope of this doctrine broadening the circumstances when such a case can be brought.

Damages in a loss of chance case will be proportional to the harm caused by the medical care provider’s negligence. The judge will ask the jury to calculate damages as follows:

(1) Calculate the total amount of damages allowable for the wrongful death statute (i.e. $6,000,000).

(2) Next calculate the patient’s chance of survival before the medical malpractice (i.e. 45%).

(3) Then calculate the chance of survival that the patient had as a result of the medical malpractice (i.e. 15%).

(4) Then subtract the two amounts (i.e. 45% – 15% = 30%).

(5) Then multiply that amount by the total damages to arrive at the damages for the loss of chance. (i.e. $6,000,000 x 30% = $1,800,000).

Time will tell whether the loss of chance doctrine will be expanded beyond medical malpractice wrongful death cases.