Massachusetts High Court: Doctors Liable for Patient’s Lessened Chance of Survival

The Massachusetts Supreme Judicial Court has ruled that physicians can be held liable in a wrongful death action when their negligence lessens a patient’s chance of survival. The ruling, which for the first time upholds the “loss of chance” doctrine, came in an appeal of case where a jury found that a physician’s negligence deprived his patient of a less than even chance of surviving stomach cancer. “Where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages,” wrote Chief Justice Margaret Marshall. The court said that permitting recovery for loss of chance is “particularly appropriate in the area of medical negligence” but added that the decision is limited to such claims. The plaintiff in this case, Kimiyoshi Matsuyama, died of gastric cancer in 1999 at the age of 46. In 2004, a jury found that he had complained for several years to his physician, Dr. Neil Birnbaum, about stomach pains, but Birnbaum did not order diagnostic tests until May 1999. The testing supported a diagnosis of gastric cancer but Matsuyama died five months later. The jury awarded $160,000 to his estate for pain and suffering caused by the physician’s negligence. It also awarded $328,125 to Matsuyama’s widow and son for the decedent’s loss of chance. On appeal, the defendants claimed that the state’s wrongful death statute does not recognize loss of chance. Birnbaum’s lawyers also argued there was no evidence that the doctor’s actions contributed substantially to his patient’s death. But the high court sided with the jury on the appeal, ruling that the loss of chance doctrine “views a person’s prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physician’s tortious conduct.” According to the decision, “recognizing loss of chance in the limited domain of medical negligence advances the fundamental goals and principles of our tort law. ” In a brief filed along with the case, a liability watchdog group expressed concern that a ruling in favor of the last chance doctrine could lead to higher malpractice insurance costs for doctors and hospitals. The members of the organization, the Professional Liability Foundation, include the Massachusetts Medical Society, Baystate Health System, Caritas Christi Health Care System, the Massachusetts Hospital Association, the Tufts-New England Medical Center, ProMutual Group, and the Risk Management Foundation of the Harvard Medical Institutions Inc.

Please click on the link below to read the Insurance Journal article:

http://www.insurancejournal.com/news/east/2008/07/24/92172.htm

For more information on defending medical malpractice and nursing home matters in Florida contact Howard Citron at The Citron Law Firm, P.A. – www.citronlegal.com.

Study Questions Breast Self-Exams

Although most women are told to examine their breasts every month for lumps, new research confirms that the practice – on its own – may do more harm than good. Self exams, and those by healthcare providers, actually produce an increase in benign biopsies, but don’t get the patient into treatment earlier or save her life. “At present, screening by self-examination or physical examination cannot be recommended,” the researchers wrote in today’s issue of The Cochrane Library, in which they reviewed previous research on nearly 400,000 women. Many cancer organizations changed their guidelines to reflect the original research after it was published five years ago, while maintaining that women should still be aware of what their breasts look and feel like, and to report any changes to their doctor. “What this research does is [say] breast self exam by itself doesn’t increase survival and it never did,” said Cindy Geoghegan, executive advisor for scientific community relations at the Susan G. Komen for the Cure. “But as part of a comprehensive plan for women for early detection” that includes maintaining a healthy lifestyle and knowing your medical history, “we’re not going to say don’t do it.” The study focuses on two studies – a 2003 study of over 120,000 Russian women and a 2002 study of over 266,000 Chinese women. While the Chinese study provides the stronger evidence – the Russian study was conducted amid the fall of the Soviet Union – both suggest that self-examination can actually pose potential harm in the form of increased benign biopsies, while no evidence can be found for potential benefits. “Publications like this are very useful for informed decision making by women,” said Dr. Barry Kramer, associate director for disease prevention at the National Institutes of Health. “Sometimes the messages that are out there are not connected to the literature and women and physicians themselves may not be fully aware of these results.” The study does not suggest that women should not perform the exams themselves, or have medical professionals perform them, but the authors write, “that the lack of supporting evidence from the two major studies should be discussed with these women to enable them to make an informed decision.”

Please click on the link below to read the Boston Globe article:

http://www.boston.com/news/health/blog/2008/07/study_questions.html

For more information on defending medical malpractice and nursing home matters in Florida contact Howard Citron at The Citron Law Firm, P.A. – www.citronlegal.com.