Wednesday, July 23, 2008

Loss Of A Less Than Even Chance

The SJC expanded medical malpractice liability today. The significance of the expansion remains to be seen.

In Matsuyama v. Birnbaum, SJC No. 9964, the Court holds that a patient whose chances of survival decrease from less than fifty percent to something less than that has suffered a compensable injury. This is a tough problem, and whether it challenges a lot of notions about tort law probably depends on how you feel about tort law as a general matter. If you have no thoughts about tort law as a general matter, you are either (a) sane, (b) not a lawyer, or (c) both.

But the logical problem, the conundrum, boils down to this: (1) you are more likely than not to die because of a certain medical condition; (2) a doctor is negligent in her treatment of you; (3) because of that negligence, it becomes even more likely that you'll die. In other words, the doctor's negligence itself hasn't caused the person to die. The SJC considers this issue in the context of someone who has passed away, but expressly leaves open the possibility that this claim can be pursued by a person who is still alive. See n. 33. Another interesting question is whether this theory would cover a plaintiff whose chance of survival decreased, but only by a small amount. The Court outlines a five step process for calculating damages, but you probably haven't seen the last of that issue.

The health care sector is, um, a bit of a big deal in Massachusetts. And the presence here of some of best medical minds on the planet means that a lot of very sick people come seeking help. Whatever you think of the result, it must be acknowledged that this case will affect the willingness of practitioners to pursue innovative solutions. And that's not a good thing.

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