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Doctor held liable for a 'loss of chance'

SJC ruling called win for seriously ill

Email|Print|Single Page| Text size + By Denise Lavoie
Associated Press / July 24, 2008

The state's highest court ruled yesterday that doctors can be held liable for negligence that reduces a patient's chance of survival, even if the patient's prospect for recovery was already less than 50 percent.

Medical malpractice lawyers said the decision from the Supreme Judicial Court could help patients who previously had little chance of collecting damages from physicians.

"The SJC has finally recognized the rights of victims of medical malpractice to be compensated for . . . the loss of that person's chance to survive a horrible medical condition that should have been properly diagnosed in the first place," said David Angueira, a Boston lawyer.

The SJC recognized for the first time a doctrine known in medical malpractice cases as "loss of chance," which allows a patient whose odds of recovery are 50 percent or less to receive damages for any negligence that reduced those odds. The court established a formula for juries to award damages proportionate to the reduced survival rate caused by the doctor's negligence.

"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," the court said in a decision written by Chief Justice Margaret Marshall.

The ruling came in a closely watched case in which a jury had awarded a $1 million judgment to the family of a man whose stomach cancer was overlooked by a Norwood doctor. Kimiyoshi Matsuyama, 46, of Sharon, died of gastric cancer in 1999.

A Norfolk Superior Court jury found in 2004 that Matsuyama repeatedly complained to Dr. Neil Birnbaum about stomach pains, beginning in 1995. Birnbaum diagnosed him with gastrointestinal reflux disease and recommended over-the-counter medications, but did not order any diagnostic tests until May 1999. After the testing, Matsuyama was diagnosed with gastric cancer and died five months later.

In Birnbaum's appeal, he argued there was no evidence that his actions or omissions substantially contributed to his patient's death.

The high court upheld the jury's judgment.

Max Borten - the lawyer who represented Matsuyama's wife, Robin - praised the ruling.

"This is something that has a dramatic impact," Borten said. "It takes a whole class of patients that had no rights before, and grants them some rights."

Birnbaum's lawyers, Peter Knight and Tory Weigand, did not immediately return calls seeking comment yesterday.

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