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LIABILITY LAW |
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OCTOBER 2008
OCTOBER 2008 MASSACHUSETTS SUPREME JUDICIAL COURT RECOGNIZES "LOSS OF CHANCE" IN MEDICAL MALPRACTICE CASES. In a pair of decisions that expand the potential reach of medical malpractice claims, the Massachusetts SJC has adopted the “loss of chance” doctrine for claims brought under the wrongful death statute, M.G.L. c. 229, §§ 2 and 6. The court held in Matsuyama v. Birnbaum, 452 Mass. 1 (2008), that an estate may recover damages by proving that a physician’s negligence reduced or eliminated the decedent’s chances of survival, even if the physician’s negligence was not the proximate cause of the decedent’s death. The court noted that the prior “all or nothing” rule unfairly precluded liability any time there was less than a 50-percent chance of survival. In noting that a substantial number of states have adopted similar loss of chance doctrines, the court reasoned that “... progress in medical science now makes it possible, at least with regard to certain medical conditions, to estimate a patient's probability of survival to a reasonable degree of medical certainty.” In Matsuyama, the court set out the specific formula for calculation of damages: 1) Calculate the full amount of damages caused by the death; 2) Calculate the patient’s chance of survival just before the malpractice; 3) Calculate the chance of survival that resulted from the malpractice; 4) Subtract amount in Step 3 from Step 2; and 5) Multiply Step 1 by the percentage in Step 4. The court indicated that expert testimony would be required in order to ascertain what measure of a more favorable outcome was medically appropriate and to determine what statistical rates of survival applied in each circumstance. In the companion case, Renzi v. Paredes, 452 Mass. 38 (2008), the SJC held that loss of chance damages are recoverable where the defendant’s negligence reduced chances of survival from greater than 50% to less than 50% (as compared to the plaintiff in Matsuyama, where the chance of survival started at less than 50%). The SJC also clarified that a jury may award damages based on whether a defendant is liable either for wrongful death or for causing a loss of a chance to survive, but not both. MA SJC: PLAINTIFF WHO ALLEGES LEGAL MALPRACTICE IN CRIMINAL DEFENSE MUST PROVE ACTUAL INNOCENCE. The Supreme Judicial Court has ruled that a plaintiff who alleges that lawyers were negligent in representing him in a criminal case must prove that he was actually innocent in order to recover from the lawyers in the legal malpractice action. See Correia v. Faqan, 452 Mass. 77 (2008). In this case, two criminal defense lawyers represented the plaintiff, Correia, in a federal criminal case in which the government alleged that Correia intentionally burned down a commercial building. Initially, Correa was convicted, but the federal criminal trial judge granted a motion for a new trial. The judge ruled that Correia’s criminal defense counsel, Fagan and Brown, had provided ineffective assistance of counsel by failing to establish that Correia did not have a fire alarm on the premises, by not mounting an effective attack on the government’s evidence regarding the cause of the fire, by failing to introduce favorable evidence regarding an insurance company investigation of the fire, and by failing to rebut misleading evidence from the prosecution regarding Correia’s finances. At the second trial, Correia was acquitted. He then brought a legal malpractice action against Fagan and Brown. The SJC explained that, in order to prevail, Correia had to prove, by a preponderance of the evidence, both that Fagan and Brown’s negligence caused him to be convicted, and also that he was actually innocent of the charges against him. In this case, Fagan and Brown were not entitled to summary judgment because there was a question of fact whether Correia was actually innocent. JUNE 2008
MASSACHUSETTS APPEALS COURT RULES THE MEDICAL MALPRACTICE STATUTES OF REPOSE DO NOT APPLY TO FRAUD CLAIM Massachusetts has two statutes of repose for medical malpractice claims. These statutes place an absolute time limit on the bringing of certain claims. Thus, G.L. c. 231, § 6D (which governs claims of minors) states, in part, that ‘in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.” Likewise, G.L. c. 260, § 4 has a similar provision applicable to adults. In Chace v. Curan, 71 Mass. App. Ct. 258 (2008), the court held that these statutes do not apply to fraud claims. The plaintiffs alleged that negligence during the minor plaintiff’s delivery caused him to suffer severe injuries. The plaintiffs asserted that a doctor and nurse prepared medical records that were inaccurate because they did not disclose that the minor plaintiff was deprived of oxygen for several minutes after he was born. Based on this omission, the plaintiffs asserted claims for fraudulent concealment and intentional misrepresentation. The court held that the statutes of repose did not apply to those clams. To prove those claims, the plaintiffs would have to show that the defendants made false representations of material fact and that the plaintiffs relied to their detriment on those representations by not filing a medical malpractice action earlier. Thus, the claims focused on the alleged effort to conceal facts, rather than the quality of the treatment itself. Given this focus, the statutes of repose did not apply. |
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