LOSS OF CHANCE & INCREASED RISK OF HARM

Question 1

Matsuyama v. Birnbaum (gastric cancer case)

Answer 1

Defendant was plaintiff’s physician and failed to diagnose gastric cancer despite symptoms and risk factors–Court found loss of chance was applicable because reduced chance of survival by preponderance of the evidence

Question 2

Patriello v. Kalman (bowel case)

Answer 2

Plaintiff alleges defendant negligently performed surgery that increased the risk of future bowel problems–Court found plaintiff could recover future damages if they are reasonably certain or more than 50% chance it will occur