While I was on vacation, I promised more commentary on Matsuyama v. Birnbaum, a landmark medical malpractice opinion on loss of chance from the Massachusetts Supreme Judicial Court.
In Matsuyama, the 42-year-old Plaintiff’s decedent, Mr. Matsuyama, saw the Defendant doctor, a board-certified internist, and his primary care doctor, for a physical in July 1995. Mr. Matsuyama’s medical records from that visit showed disclosure of complaints of gastric distress for the last seven years and that Mr. Matsuyama’s prior doctor had noted that he might need additional tests to evaluate his symptoms.
The Defendant doctor testified that Mr. Matsuyama complained of “heartburn and difficulty breathing associated with eating and lifting.” The Defendant also knows Mr. Matsuyama was a smoker at high risk for developing gastric cancer. Without further testing, the doctor diagnosed Mr. Matsuyama with gastrointestinal reflux disease.
Plaintiff’s expert testified that at this point the doctor committed medical malpractice by failing to order the right tests, and, over a year later with the same symptoms and facts available to him, he continued his diagnosis despite complaints that Mr. Matsuyama’s heartburn was worse and that he had gastric pain after eating. A year later, Mr. Matsuyama again visited his doctor and asked about moles that been developing. The doctor diagnosed “benign seborrhea keratosis.”
I’m getting deeper into the medical facts here than I would like, but you get the point. Mr. Matsuyama went back to the doctor with more symptoms consistent with gastric cancer, and his doctor failed to test more thoroughly for cancer. But in May 1999, when his symptoms went through the roof, the doctor ordered a gastrointestinal series and an abdominal ultrasound, which quickly revealed a two-centimeter mass in Matsuyama’s stomach. He died in October 2000, leaving behind a wife and child.
After a six-day trial in Norfolk County Superior Court, the jury found the doctor negligent and found that the doctor’s medical malpractice was a “substantial contributing factor” to Mr. Matsuyama’s death and awarded Matsuyama’s estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, the jury awarded damages for “loss of chance.” They calculated the damages to be $875,000 as “full” wrongful death damages and found that Matsuyama was suffering from stage-2 adenocarcinoma at the time of doctor’s initial negligence and had a 37.5% chance of survival at that time. The Norfolk jury awarded the plaintiff “final” loss of chance damages of $328,125 ($875,000 multiplied by .375) for $488,125. Continue reading
Maryland Injury Law Center
This is just a slight step forward—the court eradicates a potential factual distinction between black ice in the naked eye and white ice. But after Morgan State University v. Walker, it is hard to expect a good slip and fall opinion from Maryland’s appellate courts absent compelling circumstance where the injury victim really had no choice – defined nearly literally – but to be where he or she was at the time of the fall.
