Loss of Chance Survival

This is a new theory that Massachusetts adopted with reference to our medical malpractice laws as of September 2008 which reinforces an additional theory of recovery in Massachusetts in a delayed diagnosis of cancer case.

For example, a breast cancer patient whose doctor commits medical malpractice by failing to detect a tumor until it has reached the size or the category of a Stage III or IV cancer has reduced the chances for the cancer patient to survive. If the cancer had been properly diagnosed and detected at a Stage I there is a 90% chance of survival, but at a Stage III or IV there is only a 30% chance of survival.

This theory also rebuts the inevitable argument by the negligent doctor that the patient would have died anyway; it was just a matter of time. Unfortunately, some doctors don’t understand that time is a precious commodity to someone who is battling cancer.

Of great significance is whether or not the plaintiff in a malpractice claim was proactive and did everything that they could to seek timely diagnosis and treatment. Any delay on their part could and most likely will be construed as contributing to their delay in diagnosis.

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