In order to prove loss of chance, a plaintiff must prove by a preponderance of the evidence that the physician's negligence caused the plaintiff's likelihood of achieving a more favorable outcome to be diminished. That is, the plaintiff must prove by a preponderance of the evidence that the physician's negligence caused the plaintiff's injury, where the injury consists of the diminished likelihood of achieving a more favorable medical outcome. The loss of chance doctrine, so delineated, makes no amendment or exception to the burdens of proof applicable in all negligence claims.
In a medical malpractice case by a decedent's executrix, a jury in the Norfolk Superior Court (Massachusetts) found defendant physician negligent in misdiagnosing the decedent's cancer condition over a period of approximately three years, and awarded damages. Defendants, the physician and a corporation, appealed to the supreme court for direct appellate review.
Does Massachusetts law permit recovery for a "loss of chance" in a medical malpractice wrongful death action, where the jury found that the physician's negligence deprived the decedent of a less than even chance of surviving cancer?
The Court recognized a cause of action from loss of chance of survival under the wrongful death statute (Mass. Gen. Laws Ann. ch. 229, § 2) coincided with the common law of wrongful death as the same had developed in the Commonwealth. As medical science developed credible methods of quantifying the extent that malpractice damaged the patient's prospects for survival, and in light of the strong public policy for compensation of victims of medical malpractice, and the adherence to appropriate standards of care, loss of chance of survival rightly assumed a place in the common law of wrongful death. Application of the doctrine to the evidence in the case supported the jury's findings as to loss of chance liability; the decision was limited to loss of chance in medical malpractice actions. Such cases were proper to the loss of chance doctrine.