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Medical Malpractice Loss of Chance / Loss of Survival

The Massachusetts Supreme Court issued a written decision yesterday in a medical malpractice case, finding that doctors can be held liable for medical negligence that reduces a patient’s chance of survival, even if the patient’s probability for recovery was already less than 50 percent. The Massachusetts Supreme Court’s ruling came in a closely watched medical malpractice case. In 2004, a jury awarded $1 million to the family of a man whose cancer was overlooked by a doctor. The court upheld the jury’s award in its decision, ruling that Massachusetts law is such that if a doctor’s negligence reduces or eliminates the patient’s chance for recovery, the doctor still is liable for damages. A copy of the article regarding the case can be found here.

In Maryland medical malpractice cases, the law is different than in Massachusetts. In Maryland, in a case where a plaintiff seeks to prove that a doctor or hospital’s negligent failure to diagnose and/or treat cancer case has or will cause them to die, the plaintiff must prove that the doctor or hospital’s conduct caused them to go from having a probability of surviving the cancer (something greater than 50 percent) to having a probability of not surviving the cancer (something less than 50 percent). I have had many such cases. But if a patient only had a 40 percent probability of surviving the cancer before the malpractice, and now due to the malpractice the patient only has a 20 percent chance of surviving the cancer, that is considered a “loss of chance,” which Maryland does not recognize.

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