August 3, 2008

SJC’s Malpractice Ruling Backs Patients

By Laura Crimaldi, Boston Herald

Aug. 3--Physicians can now be held liable for negligent acts that reduce a patient's chance of survival even if the patient's odds for recovery had already been less than 50 percent, the Supreme Judicial Court has declared in a groundbreaking ruling.

"This is a win for the patient who has been brushed aside by the doctors and the system," said Dr. Max Borten, the litigator in the case that prompted the SJC's July 23 ruling. "This corrects the law for a whole population of people who never had a day in court."

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

Boston attorney David Gould, who defends doctors and hospitals against malpractice claims, said the complicated formula set up to calculate damages for loss of chance is bound to confuse jurors.

"It's going to make it more difficult to defend these cases," said Gould. "It's clearly going to take a lot longer for jurors to reach a decision than it did before. If they decide there is a loss of chance, the formula is relatively detailed and it will cause a great deal of time and consternation among jurors trying to figure it out."

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

A Norfolk Superior Court jury found in 2004 that Matsuyama repeatedly complained to Dr. Neil S. Birnbaum about stomach pains, beginning in 1995. Birnbaum diagnosed him with gastrointestinal reflux disease and recommended over-the-counter medications.

He did not order any diagnostic tests until May 1999. After the testing, Matsuyama was diagnosed with gastric cancer and died within five months.

His lawyers convinced the SJC that even though Matsuyama's survival chances would have been below 50 percent had his cancer been caught immediately, his estate (and those of like-situated patients) deserved damages because he still had a one-third change of surviving the cancer with immediate and aggressive treament.


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