Chilling New Ways Patients Are Suing Doctors

Just when you think doctors have enough to worry about with malpractice lawsuits, plaintiff attorneys are becoming more aggressive with new traps. Malpractice tort law is a matter of “drawing lines” concerning a doctor’s duty and the foreseeability of outcomes — in other words, rules concerning liability are arbitrary. These new trends have the potential to redraw the lines and negate some of the benefits tort reform has brought to physicians.
Several novel approaches for bringing suit diverge from standard medical malpractice cases. Plaintiff attorneys have attempted to expand tort law to successfully sue physicians, such as “loss of chance,” failure to medically monitor, and civil rights violations.

Loss of Chance: Getting a Scary New Spin

In October 2011, the Washington State Supreme Court recognized “loss of chance” as a new cause of action.

The expansion of loss of chance is an important new trend in tort law. The first case took place in Hawaii where the Ninth Circuit affirmed the new
doctrine in federal law in 1972. As an active doctrine, it remained dormant for several decades but began to be increasingly recognized in the late
1990s. About half the states now accept it. The cases involve “what might have been” if medical treatment or a diagnosis had taken place earlier. It
involves speculation and depends on expert testimony concerning statistics.

In states that recognize this tort, if there is less than a 50% chance of survival or medical improvement, plaintiffs usually have not been able to recover. However, in a new twist, in 2008 the Massachusetts Supreme Judicial Court , in Matsuyama v. Birnbaum, allowed the cause of action to go forward where the testimony clearly indicated a loss of chance < 50%, joining the Supreme Courts of Wyoming and Delaware in allowing damages below the 50% threshold.

In this case, a patient, Mr. Matsuyama, saw the defendant doctor, a board-certified internist and the plaintiff’s primary care doctor, for a physical in July 1995. He complained of gastric distress, which was diagnosed as gastritis. However, it turned out that Mr. Matsuyama had gastric cancer. He died in October 2000, leaving behind a wife and child. The plaintiff’s expert testified that the doctor committed medical malpractice by not ordering the appropriate tests.

After a 6-day trial, the jury found the doctor negligent and that his failure to order certain tests was a “substantial contributing factor” to Mr. Matsuyama’s death. They awarded the estate $160,000 for pain and suffering but also awarded damages for “loss of chance.” They calculated the damages at $875,000 for “full” wrongful death, even though Mr. Matsuyama was suffering from stage II adenocarcinoma at the time he saw his physician and had a 37.5% chance of survival at that time. The jury awarded the plaintiff “final” loss of chance damages of $328,125 ($875,000 multiplied by .375) for a total of $488,125.

The Massachusetts high court determined that even though the plaintiff had less than a 50% chance of survival, Massachusetts should join the “substantial and growing majority of the States that have considered the question” and find that the 50% all-or-nothing rule is unsatisfactory. This trend will also increase the level of defensive medicine and the ordering of more tests.

Regaining Popularity: Suing for Potential Future Problems

Suing for future potential problems has been around for about 20 years but is gaining in popularity now. It arose from various class action suits involving exposure to toxic substances. The gist of the action is that a plaintiff may develop pathology in the future because of toxic exposure.

Traditional tort law requires establishing damages by the time the case is tried. So this new tort seeks damages for conditions that have not been identified at the time of the trial but may emerge in the future. It seeks monetary damages to “monitor” the plaintiff in the future. This represents a new wrinkle in individual cases.

In a 1997 case, the United States Supreme Court rejected “medical monitoring” as a legitimate claim. This decision effectively decreased the number of medical monitoring cases filed at the state level. However, in 2006 in Massachusetts, Kathleen Donovan sued Philip Morris USA on behalf of former heavy smokers. They didn’t seek monetary damages but wanted the court to grant a program of low-dose CT scanning to screen for future lung cancer. In 2009, the Supreme Judicial Court of Massachusetts reversed the antiscreening trend and handed down an opinion allowing claims for medical monitoring to go forward.

Normally, the case would have been dismissed because the plaintiffs could not prove current injury. This represents an expansion of tort law that could easily be used to define a new standard of care: failure to monitor.

‘However, not all states are going in that direction. In a 2007 North Carolina case, Curl v. American Multimedia, the allegation of “future likelihood of disease” was rejected. The plaintiffs claimed that the defendants were liable for contamination of their wells.

On the basis of these claims, the plaintiffs sought damages for medical expenses, pain and suffering, the increased likelihood of future disease, and the cost of medical monitoring. The North Carolina court was reluctant to create a new cause of action.

Plaintiff attorneys have sued for medical monitoring costs involving all types of products and activities, including potential hazards from cigarettes, operation of landfills, radiation, PCBs, pharmaceuticals, electric and magnetic field radiation, radiofrequency energy emissions, asbestos, and implanted medical devices. These claims have generally been barred.

Regardless, the 2009 ruling in Massachusetts has set a new precedent. Several states, such as Ohio and West Virginia, have recently accepted failure to monitor as a tort. A pending case in New York State is expected to arrive at a similar conclusion.

Claiming Civil Rights Violations

Many states have enacted civil rights laws that complement federal civil rights and disability laws. In an attempt to avoid traditional medical malpractice requirements of expert testimony and pretrial affidavits, some plaintiffs have filed civil rights cases, obviating the need for expert testimony.

In a case from 2012 in St. Louis, Amanda Crider, who is deaf, filed a lawsuit against a hospital after she alleged that she had continued pain after receiving an epidural during childbirth. She had requested “natural childbirth,” but as the labor progressed it became apparent to the medical staff that an epidural was advisable.

She claimed that there was a failure to advise her in sign language of the necessity of the epidural. She also claimed that there was no mention of the risks, and she alleged that she had unremitting back pain after the epidural.

Crider failed to provide an affidavit of probable medical negligence at the time her case was filed, as required by Missouri law. Instead, she claimed her civil rights were violated. This tactic circumvented the need for expert testimony.  However, the trial court dismissed the case. The appellate court affirmed the dismissal, stating that the thrust of the action was medical malpractice, not civil rights. She had not met the requirements of establishing a case of medical negligence.

Despite this, claiming a civil rights violation instead of medical malpractice is a growing trend. Many recent cases against doctors fall under the umbrella of civil rights, especially as it pertains to any disability defined by the state or federal law.

The expansion of civil rights will allow plaintiffs to file a case alleging a civil rights violation in conjunction with, or in lieu of, a malpractice case. Even though the plaintiff may lose in the end, there is the aggravation, stress, and cost for the physician to defend the suit. These actions fall under “failure to accommodate” for the disability.


Of the 3 new ways that patients are attempting to sue doctors, medical monitoring and loss of chance are the greatest threats to physicians. While the chance of success of such suits may not be high, the aggravation, time lost, and potential damage to a physician’s reputation make these threats a legitimate cause for concern.

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