We seem to be on a roll with Torts cases this week.
Earlier in the week, we looked at Matsuyama v. Birnbaum, a relatively recent medical malpractice case from Massachusetts. Matsuyama was the sort of person who could be at risk for stomach cancer. He had a history of smoking, and he'd spent twenty-four years living in Korea and Japan, countries where the risk of stomach cancer is recognized [see Ikiru...even if you don't care about stomach cancer, watch the film. It might just change your life] and where endoscopies have been recommended to men of my age as part of a physical.
Anyways, Matsuyama changed primary care providers in 1995. That July, he went in for a physical examination, and he complained of "heartburn and difficulty breathing associated with eating and lifting." He was misdiagnosed with gastrointestinal reflux disease, and tests associated with cancer weren't run for several years, in which time he made multiple visits. The cancer wasn't discovered until May 1999, when it was too late. By October, Matsuyama was dead.
The jury found that the doctor had been negligent in not initially diagnosing Matsuyama with stage two gastric cancer. While Matsuyama's chance of living with a proper diagnosis was less than 50%, he still lost something real, and of value. He lost a 37.5% chance of survival, which dropped to 0 after his disease went untreated.
They awarded his estate full wrongful death damages, which were multiplied by his chance of survival to arrive at "loss of chance" damages, which were added to damages awarded for painful suffering. The court went on to explain the loss of chance doctrine, which is generally seen as preferable to the traditional principles of providing compensation when the plaintiff was deprived of more than a 50% chance of recovery. This modified approach allows for something to be recovered when something of value has been lost: in this case, it was a 3 of 8 shot at living.
Compared to the traditional approaches, this modified approach seems fair, since it allows for compensation proportionate to the loss, providing a middle ground for both plaintiff and defendant. I'm also glad that this case was decided outside of the jurisdiction of one Tyler Durden, who would likely have taken a less favorable view of things. What would Judge Durden say?
"On a long enough timeline, everyone's survival rate drops to zero."
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