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Friday, August 08, 2008

Loss of Chance = Good Chance Jurors Get Lost

The MA Supreme Judicial Court recently handed down a decision in Matsuyama v. Birnbaum, permitting plaintiffs to sue for “loss of chance” in medical malpractice cases. In the opinion, written by Chief Justice Marshall, the Court acknowledged that, in keeping with jurisprudence in most other jurisdictions,

“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.”

While the opinion limits its scope to med-mal cases, the logic is certainly broad enough to be applied to other kinds of torts in the future.

The loss of chance doctrine is hard enough for lawyers to understand. Imagine trying to explain it to a jury. Well, that is exactly what litigators and judges will now be faced with in the hundreds of medical malpractice cases tried annually in Massachusetts. One need look no further than the language of the SJC opinion to appreciate how daunting a task this will be:

“Applying the proportional damages method, the court must first measure the monetary value of the patient’s full life expectancy and… the defendant must then be held liable only for the portion of that value that the defendant’s negligence destroyed.”

As bad as juries are at detecting witness deception or understanding their instructions, they really stink at applying probabilities and percentages. Add this processing deficiency to the inherent unpredictability of damage awards and we have quite the witch’s brew for chaos in the med-mal litigation world. (See my presentation on how badly jurors handle such tasks at

On the one hand, greater uncertainty about jury verdicts can support the sort of divergence of opinion that scuttles settlement negotiations. On the other hand, defense attorneys and insurance companies tend to be risk-averse, so this doctrinal change could provide greater incentive to settle out of court.

One thing that is clear is that attorneys (on both sides) had better learn quick how to argue loss of chance to juries. That a particular explanation makes sense to you does not guarantee that it will make sense to a jury of laypersons. This is just the sort of complicated task that lends itself to false experts taking over deliberations. Before you give your first closing argument on loss of chance, I’d strongly recommend that you test it out on a focus group panel first.

Similarly, there will be disagreements about the wording of loss of chance jury instructions that will be need to be resolved by trial court judges. Before you file motions with recommended language, you should test out that language on real people to make sure it generates the understanding of the law that you are trying to achieve. I can also help you track down studies on such language from jurisdictions where loss of chance has been available for some time.