Matsuyama v. Birnbaum

• Decision Date: 23 July 2008
• Docket Number: SJC-09964.
• Citation: 890 N.E.2d 819,452 Mass. 1
• Parties: Robin K. MATSUYAMA, executrix,<SMALL><SUP>1</SUP></SMALL> v. Neil S. BIRNBAUM & another.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

890 N.E.2d 819

452 Mass. 1

Robin K. MATSUYAMA, executrix,¹ v. Neil S. BIRNBAUM & another.²

SJC-09964.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 4, 2008.

Decided July 23, 2008.

Peter C. Knight, Boston (Tory A. Weigand with him) for Neil S. Birnbaum.

Max Borten (Sidney Gorovitz with him) for the plaintiff.

John D. Bruce, Cambridge, for Dedham Medical Associates, Inc., was present but did not argue.

Paul F. Leavis, Boston, Michael J. Harris, & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

John J. Barter, Boston, for Professional Liability Foundation, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

MARSHALL, C.J.

We are asked to determine whether Massachusetts law permits recovery for a "loss of chance" in a medical malpractice wrongful death action, where a jury found that the defendant physician's negligence deprived the plaintiff's decedent of a less than even chance of surviving cancer. We answer in the affirmative.³ As we later explain more fully, the loss of chance doctrine views a person's prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physician's tortious conduct. Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages. Permitting recovery for loss of chance is particularly appropriate in the area of medical negligence. Our decision today is limited to such claims.

The case before us was tried before a jury in the Superior Court. In response to special questions, the jury found the defendant physician negligent in misdiagnosing the condition of the decedent over a period of approximately three years. They found as well that the physician's negligence was a "substantial contributing factor" to the decedent's death. They awarded $160,000 to the decedent's estate for the pain and suffering caused by the physician's negligence, and $328,125 to the decedent's widow and son for the decedent's loss of chance.⁴ The defendants appealed, asserting, among other things, that loss of chance was not cognizable under the Massachusetts wrongful death statute, see G.L. c. 229, §§ 2 and 6,⁵ or otherwise. We granted their application for direct appellate review.

We conclude that recognizing loss of chance in the limited domain of medical negligence advances the fundamental goals and principles of our tort law. We also conclude that recognizing a cause of action from loss of chance of survival under the wrongful death statute comports with the common law of wrongful death as it has developed in the Commonwealth.⁶ See Gaudette v. Webb, 362 Mass. 60, 71, 284 N.E.2d 222 (1972) (recognizing common-law origin of wrongful death actions in Commonwealth). The application of the doctrine to the evidence in this case supported the jury's findings as to loss of chance liability. Finally, although we determine that some portions of the jury instructions do not conform in all respects to the guidelines we set out below, they were broadly consistent with our decision today. Accordingly, we affirm.⁷

1. Background. On the record before us, the jury could have found the following: the defendant, Dr. Neil S. Birnbaum, a

board-certified internist and president of the board of the codefendant, Dedham Medical Associates, Inc. (Medical Associates), became the primary care physician of the decedent, Kimiyoshi Matsuyama, in July, 1995, when the forty-two year old Matsuyama presented himself for a routine physical examination. Matsuyama's medical records at the time of his initial visit to Birnbaum disclosed complaints of gastric distress dating back to 1988. The records also indicated that in 1994 Matsuyama's previous physician had noted that Matsuyama might need an upper gastrointestinal series or small bowel follow-through to evaluate further his symptoms.⁸ During the physical Matsuyama complained, as Birnbaum testified at trial, of "heartburn and difficulty breathing associated with eating and lifting." Birnbaum testified that he was aware at the time that Matsuyama, a person of Asian ancestry who had lived in Korea and Japan for the first twenty-four years of his life and had a history of smoking, was at a significantly higher risk for developing gastric cancer than was the general population of the United States.⁹ Nevertheless, Birnbaum did not order any tests to determine the cause of Matsuyama's complaints. Based on his physical examination alone, Birnbaum diagnosed Matsuyama with gastrointestinal reflux disease and recommended over-the-counter medications to relieve Matsuyama's symptoms. Birnbaum followed a similar course of action in October, 1996, when Matsuyama returned for a sick visit, complaining that his heartburn was worse and that he had gastric pain after eating.

In September, 1997, Matsuyama consulted Birnbaum about moles that had recently developed on his body. On visual inspection, Birnbaum made a diagnosis of "one benign seborrhea keratosis."¹⁰ Birnbaum testified at trial that such moles are "common" and "not something that I would [have] overly been that fearful of."

Matsuyama next appeared for an office visit with Birnbaum on September 1, 1998, for a followup to a recent urgent care visit and for concerns about a mole over his left eye. Birnbaum was aware at the time that on August, 24, 1998, Matsuyama had presented himself at Medical Associates's urgent care facility complaining of severe stomach pain during the previous forty-eight hours, which the urgent care physician had diagnosed as gastritis. Birnbaum made a clinical diagnosis of nonulcer dyspepsia, again without the benefit of any evaluative gastrointestinal tests.¹¹ However, he did order a test on Matsuyama to determine the presence of Helicobacter pylori (H. pylori), a bacteria associated with gastric cancer, among other gastric maladies. When the test came back positive for H. pylori, Birnbaum directed his nurse to inform Matsuyama of the test results and to call in medications to treat Matsuyama's H. pylori. Neither the nurse nor Birnbaum told Matsuyama about the association of H. pylori with gastrointestinal diseases, of which Birnbaum was aware. By this time, Birnbaum testified, gastritis "probably was my leading diagnosis," but he did not order an endoscopy with biopsy or an upper gastrointestinal series, which he knew would definitively confirm or rule out his diagnosis.

When Matsuyama next appeared in Birnbaum's office in November, 1998, for a routine checkup and followup, Birnbaum noted that the patient "was feeling better" and had no "significant symptoms" of gastric distress. Such was not the case on May 3, 1999, when Matsuyama went to Birnbaum complaining of epigastric pain, vomiting, sudden weight loss, and premature feelings of fullness after eating. Birnbaum ordered a gastrointestinal series and an abdominal ultrasound, which revealed a two-centimeter mass in Matsuyama's stomach. Subsequent medical procedures confirmed the presence of infiltrative gastric adenoid carcinoma, signet ring cell type. Matsuyama then began treatment with specialists. He succumbed to gastric cancer the following October, leaving his wife and his minor son.

In June, 2000, the plaintiff filed suit against Birnbaum and Medical Associates. Her complaint, as amended, alleged wrongful death, breach of contract, and negligence against both defendants.¹² Trial began in the Superior Court in July, 2004. The jury heard testimony from, among others,¹³ the plaintiff's expert witness, Dr. Stuart Ira Finkel, a gastroenterologist. Finkel testified that, in his opinion, Birnbaum breached the applicable standard of care in evaluating and treating Matsuyama, resulting in Matsuyama's death. Specifically, Finkel opined that, in light of Matsuyama's complaints, symptoms, and risk factors, including the presence of H. pylori, his Japanese ancestry, his having lived in Japan or Korea for extended periods, his smoking history, and other well-known risk factors, an internist exercising the expected standard of care would have ordered an upper gastrointestinal series X-ray or an endoscopy, or referred Matsuyama to a specialist for endoscopy, beginning in 1995. The expert also testified that the appearance of Matsuyama's seborrheic keratosis in September, 1997, "could have and should have" triggered a suspicion of stomach cancer "right then and there." Finkel told the jury that if Birnbaum had ordered the appropriate testing on Matsuyama in 1995, the cancer "would have been diagnosed" and "treated in a timely fashion when it might still have been curable." As a result of Birnbaum's failure to make a timely diagnosis, Finkel opined the cancer metastasized to an advanced, inoperable phase, resulting in Matsuyama's premature death.¹⁴

In the course of his testimony, Finkel offered an extensive discussion of the tumor-lymph nodes-metastasis (TNM) method for classifying gastric cancer into separate "stages," from stage 0 to stage 4, with each higher stage signaling a more advanced cancer and carrying a statistically diminished chance for survival, as measured by the standard gastric cancer metric of five years cancer free after treatment.¹⁵, ¹⁶

Patients with stage 0, in which the cancer is confined to the stomach lining, have a better than 90% survival rate, Finkel averred; at stage 1, the survival rate drops to between 60% and 80%; at stage 2, between 30% and 50%; at stage 3, between 10% and 20%; and at stage 4, less than 4%.¹⁷ Finkel opined that, as a result of Birnbaum's breach of the standard of care, Matsuyama lost the opportunity of having gastric cancer "diagnosed and treated in a timely fashion when it might still have been curable."

Dr. Mark Peppercorn, a gastroenterologist, testified as an expert for...