More Liability Risk from Unilateral Refusal in Massachusetts
Posted Sep 22 2008 5:11am
Yesterday, the Massachusetts Supreme Judicial Court handed down its opinion in Matsuyama v. Birnbaum. As described in the Boston Globe :
The state's highest court ruled yesterday that doctors can be held liable for negligence that reduces a patient's chance of survival, even if the patient's prospect for recovery was already less than 50 percent. Medical malpractice lawyers said the decision from the Supreme Judicial Court could help patients who previously had little chance of collecting damages from physicians.
As I explained in my Marquette Elder's article , one reason that plaintiffs have not had much success suing health care providers who unilaterally refuse LSMT is that it is very difficult for them to prove causation. That is, it is hard to show that the patient would have lived even if the requested LSMT had been provided. Now, Massachusetts joins other states requiring that plaintiffs need only show a loss of chance. That makes the causation element significantly easier to satisfy. And it may mean that more tort-based futility cases might be brought.
As I explained in my Marquette Elder's article
, one reason that plaintiffs have not had much success suing health care providers who unilaterally refuse LSMT is that it is very difficult for them to prove causation. That is, it is hard to show that the patient would have lived even if the requested LSMT had been provided. Now, Massachusetts joins other states requiring that plaintiffs need only show a loss of chance. That makes the causation element significantly easier to satisfy. And it may mean that more tort-based futility cases might be brought.