## Facts

- Kimiyoshi Matsuyama was a patient of Dr. Neil S. Birnbaum at Dedham Medical Associates, Inc.
- Over several years, Matsuyama repeatedly reported gastric symptoms and had risk factors and signs consistent with stomach cancer.
- Birnbaum treated Matsuyama conservatively and did not timely order diagnostic testing that could have detected gastric cancer earlier.
- When appropriate testing was eventually performed, Matsuyama was diagnosed with advanced gastric cancer and died months later.
- Plaintiff’s experts testified that, when the cancer should have been diagnosed, Matsuyama likely had Stage II cancer and a 37.5% chance of five-year survival, which was reduced or eliminated by the diagnostic delay.
- A jury found Birnbaum negligent and that the negligence was a substantial contributing factor in Matsuyama’s death, awarding damages for pain and suffering and for loss of chance using a proportional calculation.

## Issues

1. Whether Massachusetts law allows recovery in a medical-malpractice wrongful-death case for loss of chance where the patient’s pre-negligence chance of survival was less than 50%.
2. Whether the Massachusetts wrongful-death statute, G.L. c. 229, § 2, bars recognizing loss-of-chance liability or damages.
3. If loss of chance is cognizable, what damages methodology should apply, including whether damages should be awarded proportionally to the chance destroyed.

## Decision

- The Supreme Judicial Court affirmed recognition of loss of chance as a cognizable injury in medical-malpractice wrongful-death actions.
- The court held a plaintiff must prove by a preponderance of the evidence that the defendant’s negligence caused a diminution in the patient’s likelihood of achieving a more favorable outcome.
- The court ruled the wrongful-death statute does not preclude loss-of-chance recovery.
- The court adopted a proportional damages approach: the value of full wrongful-death damages multiplied by the percentage probability of the chance lost.
- The court concluded the evidence supported the jury’s findings and upheld the loss-of-chance award as calculated from the jury’s survival-probability finding and full wrongful-death valuation.

## Legal Principles

- A patient’s chance of survival or other more favorable medical outcome is a legally cognizable interest; negligent reduction of that chance can constitute actionable harm even if the initial chance was below 50%.
- In loss-of-chance medical malpractice, causation focuses on whether negligence more likely than not diminished the chance of a more favorable outcome, not whether negligence more likely than not caused death.
- Probabilistic and statistical medical evidence may support causation and damages; such evidence is not categorically too speculative when grounded in competent expert testimony.
- Loss-of-chance recovery is permitted within Massachusetts wrongful-death actions; statutory “caused by” language does not foreclose treating the destroyed chance as the compensable injury.
- Damages for loss of chance are measured proportionally: (probability of chance destroyed) × (full measure of wrongful-death damages), with expert testimony typically required to quantify the chance and link it to the patient’s clinical circumstances.
- The court limited its recognition of loss of chance to medical-malpractice claims.

## Conclusion

Massachusetts permits recovery for a physician’s negligent destruction of a patient’s chance of survival in wrongful-death medical-malpractice cases, requires proof that negligence more likely than not reduced that chance, and measures damages proportionally to the percentage chance lost rather than awarding all-or-nothing wrongful-death damages.


Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819 (2008)