Doctors can be held liable for negligence even when the odds were against a patient’s survival in the first place, Massachusetts’ highest court has ruled. The decision marks the first time the state’s Supreme Judicial Court recognized “loss of chance” and opens the doors for more plaintiffs to seek damages.

Previously, Massachusetts allowed lawsuits against doctors only when patients had better-than-even odds for survival. In effect, that rule shielded doctors from any liability whenever a patient’s chances slipped below 50%, writes Chief Justice Margaret Marshall in a unanimous opinion.

“The loss-of-chance doctrine views a person’s prospects for surviving as something of value, even if the possibility of recovery was less than even,” she explains. “Where a physician’s negligence reduces or eliminates the prospects for a more favorable medical outcome, the physician has harmed the patient and is liable for damages.”

About 20 states already permit loss-of-chance lawsuits, she notes. Legal experts expect her ruling to influence other courts.


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The case involves the estate of Kimiyoshi Matsuyama, who died of gastric cancer at age 46. He repeatedly consulted an internist about stomach pains. The internist recommended OTC remedies for GI reflux disease but didn’t order diagnostic tests or refer the patient to a specialist until May 1999. At that point, Matsuyama was diagnosed with advanced infiltrative gastric adenoid carcinoma. He died five months later.

A trial jury awarded Matsuyama’s wife and son damages totaling just over $1 million, including more than $300,000 for “loss of chance.” During their deliberations, the jury set $875,000 as overall compensation for the wrongful death. Calculating that Matsuyama’s chance of survival had been 37.5% when he first consulted the doctor, jurors awarded $328,125—or 37.5% of $875,000—specifically as “loss-of-chance damages.”

The high court upheld their reasoning noting that negligence clearly contributed to loss of chance.