COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT ROBIN K. MATSWAMA, AS EXECUTRIX OF THE ESTATE OF KIMIYOSHI MATSUYAMA, PLAINTIFF / APPELLEE,

Transcription

1 COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT ROBIN K. MATSWAMA, AS EXECUTRIX OF THE ESTATE OF KIMIYOSHI MATSUYAMA, PLAINTIFF / APPELLEE, V. NEIL S. BIRNBAUM, M.D. AND DEDHAM MEDICAL ASSOCIATES, INC., DEFENDANTS / APPELLANTS. SJC AND - ANTHONY RENZI, AS ADMINISTRATOR OF THE ESTATE OF MARY JANE RENZI, PLAINTIFF /'APPELLEE, V. SANTIAGO PAREDES, M.D. AND ASSOCIATED RADIOLOGISTS OF BOSTON, INC., DEFENDANTS / APPELLANTS. SJC ON APPEAL FROM JUDGMENTS OF THE SUPERIOR COURT BRIEF OF AMICUS CURIAE THE MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS Paul F. LeaVkS (BBO #290580) Michael J. Harris (BBO #I President, The Massachusetts Crowe & Mulvey LLP Academy of Trial Attorneys 141 Tremont Street Leavis & Rest, PC Boston, MA Central Street Boston, MA J. Michael Conley (BBO #094090) Kenney & Conley, P.C. Chair, MATA Amicus Committee Kenney & Conley, P,C. Post Office Box 9139 Braintree, MA

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS i TABLE OF AUTHORITIES ii-v STATEMENT OF THE AMICUS CURIAE vi STATEMENT OF THE CASE AND PRIOR PROCEEDINGS.... vii STATEMENT OF ISSUES viii ARGUMENT INTRODUCTION... 1 I. A CLAIM FOR SO TERMED LOSS OF CHANCE, ALSO KNOWN AS, INCREASED RISK OF HARM, IS A COGNIZABLE ELEMENT OF DAMAGES IN ANY TORT CASE, INCLUDING THOSE FOR MEDICAL MALPRACTICE AND WRONGFUL DEATH THE STANDARD OF PROOF FOR "LOSS OF CHANCE" AND"1NCREASED RISK OF HARM" IS WHETHER THE DEFENDANT WAS A SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE CLAIMED INJURY DAMAGES FOR 'LOSS OF CHANCE" AND INCREASED RISK OF HARM" ARE THOSE FOUND BY THE FINDER OF FACT AS GENERAL DAMAGES CONCLUSION 18

3 TABLE OF AUTHORITIES CASES PAGE ( S 1 Aasheim v. Humberger, 695 P.2d 824,828 (Mont.1985) , 14 Alexander v. Scheid, 726 N.E.2d 272 (2000) Anderson v. W. R. Grace & Co., 628 F.Supp. 1219(1986) , 7, 8 Battany v. Wa11,232 Mass. 138 (1919) Blackrnon v. Langley, 293 Ark. 286, 737 S.W.2d 455, 457 (1987) Blondel v. Hayes, 403 S.E.2d 340 (1991) Bois v. United States,747 F.Supp. 109 (1990) Borgen v. U.S., 723 F.Supp. 581(1989) Bradford v. Baystate,415 Mass. 202, 208 (1993)... 3 Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440, 446 (1985) Campbell v. Romanos,346 Mass. 361 (1963) Carrozza v. Greenbarn, 866 A.2d 369(2004) Cuddy v. L&M Equipment Co., 352 Mass. 458, 464 and n.4 (1967) Curran v. Massachusetts Turnpike Authority, 2 Mass.L.Rptr. 260 (1994) Cusher v. Turner,22 Mass.App.Ct. 491 (1986). 3, 10, 11 Daniels v. Hadley Memorial Hosp., 566 F.2d 749, 757 (D.C.Cir.1977) DeBurkarte v. Louvar,393 N.W.2d 131, (Iowa 1986) , 15

4 Ehlinger by Ehlinger v. Sipes. 155 Wis.2d N.W.2d (1990) Evers v. Dollinger. 95 N.J A.2d405(1984) Falcon v. Memorial Hosp., 436 Mich N.W.2d (1990) Franklin v. Albert. 381 Mass. 611 (1980) Gaudette v. Webb. 362 Mass. 60 (1972) Glicklich v. Spievack. 16 Mass.App.Ct (1983) Gray v. Kieger. 27 Mass.App.Ct. 583 (1989) Hami1 v. Bashline. 481 Pa A.2d a9(1978) Hastings v. Baton Rouge Gen. Hosp., 498 So.2d (La.1986) Herskovits v. Group Health Coop. of Puget Sound. 99 Wash.2d P.2d ( James v. United States. 483 F.Supp. 581(1980) Joudrey v. Nashoba Community Hosp. Inc.. 32 Mass.App.Ct (1992) Kallenberg v. Beth Israel Hosp., 45 A.D.2d N.Y.S.2d (1974). aff'd mem., 37 N.Y.2d N.Y.S.2d N.E.2d 128(1975) Lord v. Lovett. 770 A.2d 1103 (2001) McBride v. United States. 462 F.2d (9th Cir.1972)... 5 McKe1.1ips v. Saint Francis Hosp., 741 P.2d (Okla.1987) Medved v. Glenn. 125 P.3d 913 (2005) Menard v. Collins. 298 Mass (1937)

5 Morales v. United States, 642 F.Supp. 269, 272 & n. 3 (D.P.R.1986) Morrison v. Stallworth, 73 N.C.App. 196, 326 S.E.2d 387(1985) Mullins v. Pine Manor College, 389 Mass. 47 (1983) O'Connor v. Raynawk Industries, Inc., 401 Mass. 586 (1988) , 10, 13 Palandjian v. Foster, 446 Mass. 100 (2006) Payton v. Abbott Labs, 780 F.2d 147, 156 (1st Cir.1985) Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589, 592 (1991) Petriello v. Kalman, 215 Conn. 377(1990) Primus v. Galgano,329 F.3d 236 (2003) Pullen v. Boston Elevated Ry. Co., 208 Mass. 356, 357 (1911) , 8 Richmond County Hosp. Auth. v. Dickerson, 182 Ga.App. 601, 356 S.E.2d 548, 550 (1987)... 5, 15 Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149, (1984)... 4 Royal Indem. Co. v. Pittsfield Elec. Co., 293 Mass. 4 (1935) Samii v. Baystate Med. Center, Inc., 8 Mass.App.Ct. 911, 912 (1979) Sawlani v. M ills, 830 N.E.2d 932 (2005) , Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398, (1990) , 15 Sharp v. Kaiser Foundation Health Plan of Colorado, 710 P.2d 1153(1985) iv-

6 Shumaker v. United States, 714 F.Supp. 154, 164 (M.D.N.C.1988) Smith v. State Dept. of Health and Hosp., 676 So.2d 543 (1996) , Snelson v. K m, 204 I11.2d 1 (2003) Thompson v. Sun C ity Community Hosp., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984) Thornton v. CAMC, Etc., 172 W.Va. 360, 305 S.E.2d 316, (1983),... 5 Turner v. Boston & M.R. Co., 158 Mass. 261, 267(1893) e U.S. v. Anderson, 669 A.2d 73 (1995) Voegeli v. Lewis,568 F.2d 89, 94 (8th Cir.1977)... 5 Wallace v. Ludwig, 292 Mass. 251, 256 (1935) Welch v. Keene Corp., 31 Mass.App.Ct. 157, 16 (1991) Wollen v. DePaul Health Ctr., 828 S.W.2d 681, (M0.1992) *... 4 STATUTES Mass. Gen. Laws ch. 228, *.., 7 Mass. Gen. Laws ch. 229, , 14 Mass. Gen. Laws ch. 229, ,..,.. 1 Mass. Gen. Laws ch. 260, *. *....., 7 PRIMARY SOURCES Restatement (Second) of Torts Restatement (Second) of Torts 899.., Restatement (Second) of Torts Restatement (Second) of Torts 433A and comment i Restatement (Second) of Torts 433B(l)comment a. 13 -V-

7 STATENENT OF THE AMICUS CURIAE The Massachusetts Academy of Trial Attorneys ("MATA"), amicus curiae, is a voluntary, non-profit, state-wide professional association of attorneys in the Commonwealth of Massachusetts. The mission of the Academy is to preserve the American jury system; to protect the health and safety of Massachusetts families; to improve the quality of legal representation through education; to educate the public about consumer issues; to uphold the honor and dignity of the legal profession; and to uphold and defend the Constitution of the United States and the Commonwealth of Massachusetts. MATA offers its experience and perspective to this Honorable Court as amicus curiae to assist in the resolution of the important issue raised by the present appeals. -vi -

8 STATEMENT OF THE CASE AND PRIOR PROCEEDINGS MATA, as amicus curiae, accepts the statements and prior proceedings of fact set forth by the prevailing plaintiff in each case. However, cognizant that the cases currently on appeal involve different factual circumstances, the amicus curiae will address the current state of the law generally, so that it can be applied to these and other cases in accordance with the longstanding jurisprudence in this Commonwealth. -vii-

9 STATEMENT OF THE ISSUES I. IS A CLAIM FOR "LOSS OF CHANCE" RECOVERABLE IN MASSACHUSETTS MEDICAL MALPRACTICE CASES? TI. WHAT IS THE STANDARD OF PROOF OF CAUSATION FOR "LOSS OF CHANCE" CASES? 111. HOW ARE DAMAGES CALCULATED IN "LOSS OF CHANCE" CASES? -viii-

10 ARGuEdENT INTRODUCTION The concept of "loss of a chance'' due to a negligent failure to diagnose cancer implicates two related scenarios. First - the true "loss of chance" issue - examines the compensability of increased risk of harm caused OT enhanced by a medical defendant's negligence in failing to timely diagnose and treat a patient's cancer. This is essentially a question of damages which may arise in an action by the patient or by the patient's survivors pursuant to G.L. c The second arises when the increased risk of harm is followed by the death of the patient, and necessitates consideration of the quantum of proof necessary for a plaintiff to establish that a medical defendant's negligence in failing to timely diagnose and treat a patient's cancer is causally related to the patient's death so as to enable the patient's survivors to succeed in claims for consortium-like damages pursuant to G.L. c.229, S2.l The existence and contours of the parties' rights in both loss-of-chance scenarios are well established based on traditional Massachusetts._ 'See Gaudette v. Webb, 362 Mass. 60, 62 (1972)(Although G.L. c.229, 6... permits the joinder of separate counts for death and for conscious suffering in a single action, they are separate causes of action.) -1-

11 tort principles and the cases on appeal to the Supreme Judicial Court do not present an occasion to change the common law to the detriment of victims of medical malpractice and their survivors. I. A CLAIM FOR SO-TERMED "LOSS OF CHANCE", ALSO KNOWN AS, "INCREASED RISK OF HARM", IS A COGNIZABLE ELEMENT OF DAMAGES IN ANY TORT CASE, INCLUDING THOSE FOR MEDICAL MALPRACTICE AND WRONGFUL DEATH. Recognizing loss of chance as a compensable item of damages or as a legitimate basis for establishing causation in a wrongful death case is not a new concept or doctrine but simply an application in the medical malpractice context of tort principles long established by this Court. It does not create any new rights, causes of action, or theories of recovery, but rather recognizes rights already existing in Massachusetts common law. See e.g. Primus v. Galgano, 329 F.3d 236 (2003)(holding that proximate cause can be satisfied by proving the loss of a much improved chance of survival) : Curran v. Massachusetts Turnpike Authority, 2 Mass.L.Rptr. 260 (1994) (holding that emotional distress stemming from increased risk of harm is recoverable when it stems from same risk from which the patient currently suffers) ; Joudrey v. Nashaba Community Hosp. Inc., 32 Mass.App.Ct. 974,

12 (1992)(allowing jury to infer proximate cause from expert testimony that patient likely would have had improved chance of survival or longer life); Bois v. United States, 747 F.Supp. 109 (1990)(holding that knowledge of loss of chance of longer life is a recoverable element of damages) ; Gray v. Kieger, 27 Mass.App.Ct. 583 (1989) (holding that damages may compensate for increased risk of metastasis, for emotional distress, and for anxiety stemming from such risk); Cusher v. Turner, 22 Mass.App.Ct. 491 (1986) (holding that expert testimony that plaintiff lost a much improved chance of survival or longer life satisfied causation) ; Glicklich v. Spievack, 16 Mass.App.Ct. 488, (1983) (Recognizing in failure to diagnose cancer case that 94% reduction to 50% by one doctor was compensable loss of chance of survival and reduction of 50% or less chance of survival to outside chance of year or two by second doctor was sufficient to meet plaintiff s legal burden with regard to proximate cause ); see also Bradford v. Baystate Medical Center, 415 Mass. 202, 208 (1993) (allowing case to pass tribunal process where loss of chance involved loss of ; chance of survival). -3-

13 The majority of jurisdictions that have addressed the loss of chance issue have chosen, like Massachusetts, to adopt some form of loss of chance recovery. See e.g. Thompson v. Sun City Community Hosp., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984); Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455, 457 (1987); DeBurkarte v. Louvax, 393 N.W.2d 131, (Iowa 1986); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149, (1984); Hastings v. Eaton Rouge Gen. Hosp., 498 So.2d 713, 720 (La.1986); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, (1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, (Mo.1992) (en banc); Aasheim v. Humberger, 695 P.2d 824, 828 (Mont.1985); Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589, 592 (1991); Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398, (1990); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508, (19741, aff d mem., 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128 (1975); McKellips v. Saint Francis Hosp., 741 P.2d 467, (Okla.1987); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, (1978); Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440, 446 (1985); Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 664 P.2d 474,

14 (1983); Thornton v. CAMC, Etc., 172 W.Va. 360, 305 S.E.2d 316, (1983); Ehlinger by Ehlinger v. Sipes, 155 Wis.2d 1, 454 N.W.2d 754, 759 (1990); see also Daniels v. Hadley Memorial Hosp., 566 F.2d 749, 757 (D.C.Cir.1977)(District of Columbia law) ; Richmond County Hosp. Auth. v. Dickerson, 182 Ga.App. 601, 356 S.E.2d 548, 550 (1987); McBride v. United States, 462 F.2d 72, 75 (9th Cir.1972) (Hawaii law); Shumaker v. United States, 714 F.Supp. 154, 164 (M.D.N.C.1988) (North Carolina law) ; Morales v. United States, 642 F.Supp. 269, 272 & n. 3 (D.P.R.1986)(Puerto Rico law); Voegeli v. Lewis, 568 F.2d 89, 94 (8th Cir.1977) (South Dakota law). Because Massachusetts loss-of-chance jurisprudence based on decisions of the Appeals Court is a well-developed and mature body of law and is consistent with the majority of precedent in other jurisdictions, alarmist arguments warning against opening the floodgates of litigation are specious. The law has been established for some time and there has been no flood. Cases based on loss of chance theories are already in the system based on existing precedent, and there is no reason to suggest that affirmation of such existing precedent would increase claims or court filings. -5-

15 Rather, in the present cases, it is the defendants who seek to change the status quo by depriving victims of well established rights of recovery. Neither precedent nor public policy supports such retrenchment. Massachusetts courts have long recognized "Loss of Chance" and "Increased Risk of Harm" as a cognizable theory of recovery in tort cases. As a fundamental tenet of damages, plaintiffs are not limited to compensation for suffering that they have proven will inevitably follow, but are instead entitled to compensation for all damages that are reasonably expected to follow. See Pullen v. Boston Elevated Ry. Co., 208 Mass. 356, 357 (1911); Menard v. Collins, 298 Mass. 40, 41 (1937); Restatement (Second) of Torts 910 (those injured by tort entitled to recover for all harm, past, present and promective). Included among a plaintiff's prospective damages are damages for increased risk of future harm. See Anderson v. W.R. Grace & Co., 628 F.Supp (1986); Restatement (Second) of Torts S323 (1965)(liability attaches when failure to exercise reasonable care increases risk of harm). In Anderson, the Court posited that plaintiffs are entitled to recover for the increased risk of future harm if (1) the future harm is established by -6-

16 '' reasonable probability, and if (2) the cause of action has accrued. 628 F.Supp at A tort claim for prospective damages, and indeed all damages, however, does not accrue until "there has been an invasion of a legally protected interest of the plaintiff ~ Restatement (Second) of Torts 899. This was specifically articulated with respect to medical malpractice cases in Franklin v. Albert, when this the Court held that 'a cause of action for medical malpractice does not accrue under G.L. c.260, 4, until a patient learns, or reasonably should have learned, that he or she has been harmed as a result of the defendant's conduct." See Franklin v. Albert, 381 Mass. 611 (1980). For the plaintiffs' decedents in the present cases, accrual occurred when they were diagnosed with cancer. At the time of diagnosis, each patient was entitled to bring a claim for the conscious suffering caused to them as a result of the negligence of the defendants.2 2 A plaintiff's claim for personal injury, including increased risk of harm survives his or her death. See Mass. Gen. Laws c.228, l("[i]n addition to the actions which survive by the common law, the following shall survive:... Actions of tort... for assault, battery, imprisonment or other damage to the person."). Accordingly, if a defendant's negligent act or omission causes an injury or condition as a consequence of which a plaintiff suffers an increased risk of harm, then "[a] right of action simultaneous with the injury -7-

17 A prevailing plaintiff in Massachusetts is entitled to compensation for all damages that are reasonably expected to follow from the defendant s negligence. Anderson, 628 F.Supp. at 1230 (citing Pullen, 208 Mass. at ). There can be but one action to recover damages for an injury, and therefore compensation for injury in the future, as well as in the past, must be estimated and awarded. Elements of injury in the future which may be considered are the probable duration of life or of ill health the diminished ability to labor the loss of future income the increase of future necessary and reasonable expenses. Turner v. Boston & M.R. Co., 158 Mass. 261, 267 (1893). Surely, a plaintiff whose cancer is allowed to worsen due to the negligence of a health care provider is entitled for damages to compensate for the patient s own experience during his or her lifetime of the consequences of the defendant s negligence. [negligently caused by the defendant] accrued to... [the plaintiff], as a person in esse, and... [his/her] subsequent death does not defeat it, but, by operation of the statute, vests it in the personal representative. See Gaudette, 362 Mass. 60 (citing Battany v. Wall, 232 Mass. 138 (1919)); Royal Indem. Co. v. P ittsfield Elec. Co., 293 Mass. 4 (1935); Campbell v. Romanos, 346 Mass. 361 (1963). -a-

18 11. THE STANDARD OF PROOF FOR "LOSS OF CHANCE" AND "INCREASED RISK OF HARM" IS WHETHER THE DEFENDANT WAS A SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE CLAIMED INJURY OR DEATH. A plaintiff's burden of proof in a case involving \\loss of chance" and "increased risk of harm" is the same as it would be for any other claim for personal injuries. The plaintiff's burden requires proof that, more likely than not, that the defendants' conduct contributed in fact to causing an increased risk of harm in a legally cognizable manner. "A plaintiff need only show that there was greater likelihood or probability that the harm complained of was due to causes for which the defendant was responsible than from any other cause. An expert's opinion based on facts in evidence is sufficient proof of causation. The plaintiffs are not required to eliminate entirely a11 possibility that the defendant's conduct was not a cause. It is enough that they introduce evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. [citations omitted]." Mullins v. Pine Manor College, 389 Mass. 47 (1983); see O'Connou v. Rapark Industries, Inc., 401 Mass. 586 (1988). Said differently, the defendants' conduct must be shown to -9-

19 have made a difference in the result; to be something that was substantial enough in combination with other factors to cause the increased risk of harm; and to be something that was not so slight and tangential to the increased risk that, even when combined with other factors, it could not reasonably be said to have contributed to the result. See O Connor v. Raymark Industries, Inc., 401 Mass In medical malpractice cases, the plaintiff bears the burden of establishing what is reasonably expected to follow through expert testimony. See Glicklich, 16 Mass.App.Ct. at 492; Cusher, 22 Mass.App.Ct. at 497. with respect to cancer cases, precise evidence as to the staging of the cancer, exactly when it metastasized, and exactly when it became inoperable has not been required. See Glicklich, 16 Mass.App.Ct. at 492; Cusher, 22 Mass.App.Ct. at 497. Instead, Massachusetts courts have held it sufficient for expert testimony to be able to state, more likely than not, that the patient had not metastasized at the time of negligence or that the patient would have had a much or substantially improved chance of survival or longer life if the diagnosis and treatment met the accepted standard of care. See Glicklich, 16 Mass.App.Ct. at -10-

20 492; Cusher, 22 Mass.App.Ct. 497, 495 N.E.2d 311. Althoug not required to establish the exact cause of harm or to exclude all possibility that the harm would not have occurred absent the physician's negligence, the expert testimony will often include a quantification of the increased risk. See Samii v. Baystate Med. Center, Inc., 8 Mass.App.Ct. 911, 912 (1979); Glicklich, 16 Mass.App.Ct. at 495 (quantifying loss of chance going from 50% chance of ten year survival to a life expectancy of "possibly a year or two"). In loss of chance cases in which the injury alleged is the increased risk of harm rather than the wrongful death, the finder of fact must infer, based upon all available evidence, that the defendant's negligence can reasonably be said to be a substantial contributing factor in causing the plaintiff injury with an attendant increased risk of harm. See Glicklich, 16 Mass.App.Ct. at 492. By contrast, in a wrongful death claim the plaintiff must prove that the defendant's negligence substantially contributed to the patient's death. Stated otherwise, the plaintiff must show that the result of the defendant's negligence not only caused -11-

21 harm in the form of worsened or unchecked disease process, but also that the negligence substantially contributed to the patient s death. In either scenario, a plaintiff may prevail on a showing that the defendant s negligence combined with the patient s disease to bring about greater ham to the patient than would have resulted from the disease alone. Where the defendant s negligence causes or contributes to cause the development of a pre-existing disease, the defendant is liable for the resulting aggravation. The wrongdoer may be held responsible for the harmful results of the combined effects of his wrongful act and the disease. Wallace v. Ludwig, 292 Mass. 251, 256 (1935); Restatement (Second) of Torts 5433A and comment i. Precise risk quantification, studies of statistical life expectancies and the like are important, but do not themselves constitute expert opinion or embody substantive legal principles upon which to condition a recovery. Such information is properly examined in assessing the reliability or the adequacy of the basis of an expert s opinion. See Palandjian v. Foster, 446 Mass. 100 (2006)( Not all factors identified in Daubert applicable in every case; -12-

22 trial judge has broad discretion to determine how to assess the reliability of expert testimony). Moreover, caution is warranted in the use of such statistical data so as not to derogate from established principles of legal causation for damages arising from concurrent causes. The plaintiff is not required to show that the physician's negligence is the exact cause of the harm nor is the plaintiff required to exclude all possibility that the harm would not have occurred absent the physician's negligence. Joudrey v. Nashoba Community Hosp., Inc., 32 Mass.App.Ct. 974 (1992). A plaintiff is not required to prove that but for the defendant's negligence he or she would not have been harmed, but rather must establish "that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm." Restatement (Second) of Torts 433B(1) comment a (1965). See O'Connor v. Raymark Indus., Inc Mass. 586, 589(1988); Payton v. Abbott Labs, 780 F.2d 147, 156 (1st Cir.1985). Welch v. Keene Corp., 31 Mass.App.Ct. 157, 162 (1991). -13-

23 111. DAWLGES FOR "LOSS OF CHANCE" AND "INCREASED RISK OF HARM" ARE THOSE FOUND BY THE FINDER OF FACT AS GENERAL DAM?4GES. The damages in an action for loss-of-chance are to compensate for the patient's own experience during his or her lifetime of the consequences of a defendant's negligence, including a worsened or un-arrested illness and a resultant diminished life expectancy or chance of survival. This is clearly an item of general damage to be assessed by the jury as such. Damages in a wrongful death claim are to compensate the decedent's statutorily designated survivors for consortium-like damages pursuant to G.L. c.229, S2* This is likewise an item of general damages. The majority of jurisdictions consider the proper method for determining the value of a plaintiff's loss of chance damages as well as wrongful death damages to be the juror valuation method. See Aasheim v. Hwnberger, 695 P.2d. 824; Sawlani v. Mills, 830 N.E.2d 932 (2005); Medved v. Glenn, 125 P.3d 913 (2005); Carrozza v. Greenbaum, 866 A.2d 369 (2004); Snelson v. K m, 204 I11.2d 1 (2003); Lord v. Lovett, 770 A.2d 1103 (2001); Alexander v. Scheid, 726 N.E.2d 272 (2000); Smith v. State Dept. of Health and Hospitals, -14-

24 676 So.2d 543 (1996); U.S. v. Anderson, 669 A.2d 73 (1995); Blondel v. Hayes, 403 S.E.2d 340 (1991); Petriello v. Kalman, 215 Conn. 377 (1990); Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990); Borgen v. U.S., 723 F.Supp. 581 (1989); Richmond County Hosp. Authority Operating University Hosp. v. Dickerson, 182 Ga.App. 601, 356 S.E.2d 548 (1987); DeBurkarte v. Louvar, 393 N.W.2d 131 (1986); Sharp v. Kaiser Foundation Health Plan of Colorado, 710 P.2d 1153 (1985); Morrison v. Stallworth, 73 N.C.App. 196, 326 S.E.2d 387 (1985); Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984); James v. United States, 483 F.Supp. 581 (1980). This approach leaves the assessment of loss of chance damages to the discretion of the jury based upon all available evidence. It will be the plaintiff's burden to supply expert testimony, medical treatises, medical literature regarding the growth rates of the plaintiff's cancer, and/or lay and expert witness testimony to establish loss of chance damages. The jury will then make a finding of loss of chance damages based upon a consideration of all of the available evidence, including evidence of the patient's life expectancy and degree of illness preexisting the -15-

25 defendant s negligence. This method is the preferred method, because it recognizes that loss of chance or increased risk of harm damages are general damages that, by definition, can only be decided by the finder of fact upon a consideration of all available evidence (both objective and subjective). Since there is a subjective element to loss of chance damages, which will depend on the specific factual circumstances of each case, the preferred method is to leave such a determination to the sound discretion of the finder of fact. This is the unquestionably the approach that would apply if a cancer patient were killed in an automobile accident and it should prevail in all tort cases, with no exception for medical malpractice cases. An alternative approach, which is employed by the Oklahoma Supreme Court, is to proportion damages according to mathematical probabilities. See McKellips v. Saint Francis Hospital, Inc., 741 P.2d 467. Under the proportional damages approach, the finder of fact is asked to find the percentage for the original chance of a better outcome (in the absence of negligence) and then the percentage of the diminished chance of a better outcome (resulting from the defendant s negligence). The percentages will then be used to -16-

26 determine the percentage of the total recovery that should be awarded to the plaintiff. By example, if upon consideration of all of the evidence, the jury finds that a plaintiff progresses from a 50% chance of survival to a 10% chance of survival, then the plaintiff will be entitled to 40% of their wrongful death damages, which is also determined by the finder of fact. There is no precedent in Massachusetts, at common law or under the wrongful death statute for such proportional damage awards or such micromanagement of jury deliberations. After all, the foundation on which the modern tort system rests is the belief that a jury is capable of assessing and fairly measuring and compensating in financial terms the nature and extent of otherwise unquantifiable human loss. Consequently, damages in cases claiming loss-of-chance are properly considered as general damages to be determined in the discretion of the factfinder without application of any fixed formula. See Cuddy v. L&M Equipment Co., 352 Mass. 458, 464 and n.4 (1967). -17-

27 CONCLUSION Accordingly, for all of the foregoing reasons, The Massachusetts Academy of Trial Attorneys, amicus curiae, urges the Court to reaffirm "Loss of Chance" and "Increased Risk of Harm" as appropriate tort damages that are recoverable in both medical malpractice and wrongful death cases, and that when a defendant's negligence is shown to be substantial contributing factor of the plaintiff's increased illness, diminished chance of survival, or death, then the damages should be assessed by the finder of fact as general damages. Respectfully submitted, AMICUS CURIAE, THE MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS, By its attorneys, /j<ld 9,- A-J/<kw Paul F. Lea is (BBO ) ichael J, arri (BBO #648424) President, The Massachusetts Crowe & Mulvey LLP Academy of Trial Attorneys 141 Tremont Street Leavis & Rest, PC 83 Central Street Boston, MA y(bb0 #094090) Post Office Box 9139 Braintree, MA Dated: November 30,