MATSUYAMA v. BIRNBAUM, 452 Mass. 1 (2008)

890 N.E.2d 819

No. SJC-09964.Supreme Judicial Court of Massachusetts. Norfolk.March 4, 2008.
July 23, 2008.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, BOTSFORD, JJ.

Negligence, Doctor, Medical malpractice, Wrongful death, Loss of chance, Causation. Medical Malpractice, Complaint. Wrongful Death. Damages, Wrongful death, Loss of chance. Practice, Civil, Instructions to jury.

This court concluded that Massachusetts law permits recovery for a loss of chance in a medical malpractice wrongful death action, where a physician’s negligence reduces or eliminates a patient’s prospects for achieving a more favorable medical outcome, even if the possibility of recovery was less than even prior to the physician’s tortious conduct [10-14]; further, the court concluded that in order to prove loss of chance, a plaintiff must demonstrate by a preponderance of the evidence that the physician’s

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negligence caused the patient’s likelihood of achieving a more favorable outcome to be diminished [14-17]; moreover, the court rejected the contention that a statistical likelihood of survival was a mere possibility and, therefore, speculative [17-19], and emphasized that the adoption of the loss of chance doctrine was limited to medical malpractice actions [19-20].

This court concluded that the wrongful death statute, G.L. c. 229, § 2, did not preclude a claim for loss of chance, in light of the strong public policy favoring compensation for victims of medical malpractice and the deterrence of deviations from appropriate standards of care. [20-25]

This court concluded that in determining damages in a medical malpractice action alleging loss of chance, no single measure of a victim’s prospects for achieving a more favorable outcome would apply uniformly, and which measure to use would depend to some extent on the shape of the available medical evidence in each particular case [25]; moreover, this court concluded that the calculation of loss of chance damages should be undertaken using the proportional damages approach, which measures the percentage probability by which a defendant’s tortious conduct diminished the likelihood of achieving some more favorable outcome, and aims to ensure that a defendant is liable in damages only for the monetary value of the portion of the victim’s prospects that the defendant’s negligence destroyed [26-28]; further, this court acknowledged that expert testimony would be necessary to ascertain what measure of a more favorable outcome was medically appropriate, to determine what statistical rates of survival would apply in what circumstances, and to apply such rates to the particular clinical circumstances of the victim [28-29].

In a civil action, sufficient evidence existed to support the jury’s conclusion that the defendant physician’s negligence caused a diminution in the likelihood of the plaintiff’s decedent achieving a more favorable outcome for his medical condition, and the judge’s use of the “substantial contributing factor” test in his instructions to the jury did not prejudice the defendant, as such instructions arguably imposed a higher burden on the plaintiff. [29-32]

In a civil action alleging that the defendant physician’s negligence deprived the plaintiff’s decedent of a less than even chance of surviving cancer, the judge did not abuse his broad discretion in fashioning the jury instructions and special questions, in that nothing in the instructions or the special questions indicated to a reasonable juror that the judge was weighing in on the ultimate question of liability or forcing the jury to find a certain damages amount [32-34]; further, the judge did not commit reversible error in instructing on the viability of loss of chance as an item of damages, and while, in applying the proportional method to determine damages for loss of chance, he should not have removed from the jury’s consideration the question whether and to what extent the physician’s negligence left the plaintiff’s decedent with any chance of survival, no remand was necessary, as the defendants waived any objection to that instruction by failing to object specifically [34-36]; finally, the judge did not err in including an instruction on gross negligence [36-37].

CIVIL ACTION commenced in the Superior Court Department on June 21, 2000.

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The case was tried before Ernest B. Murphy, J.

The Supreme Judicial Court granted an application for direct appellate review.

Peter C. Knight (Tory A. Weigand with him) for Neil S. Birnbaum.

Max Borten (Sidney Gorovitz with him) for the plaintiff.

John D. Bruce, for Dedham Medical Associates, Inc., was present but did not argue.

Paul F. Leavis, Michael J. Harris, J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

John J. Barter, for Professional Liability Foundation, amicus curiae, submitted a brief.

MARSHALL, C.J.

We are asked to determine whether Massachusetts law permits recovery for a “loss of chance” in a medical malpractice wrongful death action, where a jury found that the defendant physician’s negligence deprived the plaintiff’s decedent of a less than even chance of surviving cancer. We answer in the affirmative.[3] As we later explain more fully, the loss of chance doctrine views a person’s prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physician’s tortious conduct. Where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages. Permitting recovery for loss of chance is particularly appropriate in the area of medical negligence. Our decision today is limited to such claims.

The case before us was tried before a jury in the Superior Court. In response to special questions, the jury found the defendant physician negligent in misdiagnosing the condition of the decedent over a period of approximately three years. They found as well that the physician’s negligence was a “substantial contributing

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factor” to the decedent’s death. They awarded $160,000 to the decedent’s estate for the pain and suffering caused by the physician’s negligence, and $328,125 to the decedent’s widow and son for the decedent’s loss of chance.[4] The defendants appealed, asserting, among other things, that loss of chance was not cognizable under the Massachusetts wrongful death statute, see G.L. c. 229, §§ 2 and 6, [5] or otherwise. We granted their application for direct appellate review.

We conclude that recognizing loss of chance in the limited domain of medical negligence advances the fundamental goals and principles of our tort law. We also conclude that recognizing a cause of action from loss of chance of survival under the wrongful death statute comports with the common law of wrongful death as it has developed in the Commonwealth.[6]
See Gaudette v. Webb, 362 Mass. 60, 71 (1972) (recognizing common-law origin of wrongful death actions in Commonwealth). The application of the doctrine to the evidence in this case supported the jury’s findings as to loss of chance liability. Finally, although we determine that some portions of the jury instructions do not conform in all respects to the guidelines we set out below, they were broadly consistent with our decision today. Accordingly, we affirm.[7]

1. Background. On the record before us, the jury could have found the following: the defendant, Dr. Neil S. Birnbaum, a

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board-certified internist and president of the board of the co-defendant, Dedham Medical Associates, Inc. (Medical Associates), became the primary care physician of the decedent, Kimiyoshi Matsuyama, in July, 1995, when the forty-two year old Matsuyama presented himself for a routine physical examination. Matsuyama’s medical records at the time of his initial visit to Birnbaum disclosed complaints of gastric distress dating back to 1988. The records also indicated that in 1994 Matsuyama’s previous physician had noted that Matsuyama might need an upper gastrointestinal series or small bowel follow-through to evaluate further his symptoms.[8] During the physical Matsuyama complained, as Birnbaum testified at trial, of “heartburn and difficulty breathing associated with eating and lifting.” Birnbaum testified that he was aware at the time that Matsuyama, a person of Asian ancestry who had lived in Korea and Japan for the first twenty-four years of his life and had a history of smoking, was at a significantly higher risk for developing gastric cancer than was the general population of the United States.[9]
Nevertheless, Birnbaum did not order any tests to determine the cause of Matsuyama’s complaints. Based on his physical examination alone, Birnbaum diagnosed Matsuyama with gastrointestinal reflux disease and recommended over-the-counter medications to relieve Matsuyama’s symptoms. Birnbaum followed a similar course of action in October, 1996, when Matsuyama returned for a sick visit, complaining that his heartburn was worse and that he had gastric pain after eating.

In September, 1997, Matsuyama consulted Birnbaum about moles that had recently developed on his body. On visual inspection, Birnbaum made a diagnosis of “one benign seborrhea keratosis.”[10] Birnbaum testified at trial that such moles are “common”

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and “not something that I would [have] overly been that fearful of.”

Matsuyama next appeared for an office visit with Birnbaum on September 1, 1998, for a followup to a recent urgent care visit and for concerns about a mole over his left eye. Birnbaum was aware at the time that on August, 24, 1998, Matsuyama had presented himself at Medical Associates’s urgent care facility complaining of severe stomach pain during the previous forty-eight hours, which the urgent care physician had diagnosed as gastritis. Birnbaum made a clinical diagnosis of nonulcer dyspepsia, again without the benefit of any evaluative gastrointestinal tests.[11]
However, he did order a test on Matsuyama to determine the presence of Helicobacter pylori (H. pylori), a bacteria associated with gastric cancer, among other gastric maladies. When the test came back positive for H. pylori, Birnbaum directed his nurse to inform Matsuyama of the test results and to call in medications to treat Matsuyama’s H. pylori. Neither the nurse nor Birnbaum told Matsuyama about the association of H. pylori with gastrointestinal diseases, of which Birnbaum was aware. By this time, Birnbaum testified, gastritis “probably was my leading diagnosis,” but he did not order an endoscopy with biopsy or an upper gastrointestinal series, which he knew would definitively confirm or rule out his diagnosis.

When Matsuyama next appeared in Birnbaum’s office in November, 1998, for a routine checkup and followup, Birnbaum noted that the patient “was feeling better” and had no “significant symptoms” of gastric distress. Such was not the case on May 3, 1999, when Matsuyama went to Birnbaum complaining of epigastric pain, vomiting, sudden weight loss, and premature feelings of fullness after eating. Birnbaum ordered a gastrointestinal series and an abdominal ultrasound, which revealed a two-centimeter mass in Matsuyama’s stomach. Subsequent medical

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procedures confirmed the presence of infiltrative gastric adenoid carcinoma, signet ring cell type. Matsuyama then began treatment with specialists. He succumbed to gastric cancer the following October, leaving his wife and his minor son.

In June, 2000, the plaintiff filed suit against Birnbaum and Medical Associates. Her complaint, as amended, alleged wrongful death, breach of contract, and negligence against both defendants.[12] Trial began in the Superior Court in July, 2004. The jury heard testimony from, among others, [13] the plaintiff’s expert witness, Dr. Stuart Ira Finkel, a gastroenterologist. Finkel testified that, in his opinion, Birnbaum breached the applicable standard of care in evaluating and treating Matsuyama, resulting in Matsuyama’s death. Specifically, Finkel opined that, in light of Matsuyama’s complaints, symptoms, and risk factors, including the presence of H. pylori, his Japanese ancestry, his having lived in Japan or Korea for extended periods, his smoking history, and other well-known risk factors, an internist exercising the expected standard of care would have ordered an upper gastrointestinal series X-ray or an endoscopy, or referred Matsuyama to a specialist for endoscopy, beginning in 1995. The expert also testified that the appearance of Matsuyama’s seborrheic keratosis in September, 1997, “could have and should have” triggered a suspicion of stomach cancer “right then and there.” Finkel told the jury that if Birnbaum had ordered the appropriate testing on Matsuyama in 1995, the cancer “would have been diagnosed” and “treated in a timely fashion when it might still have been curable.” As a result of Birnbaum’s failure to make a timely diagnosis, Finkel opined,

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the cancer metastasized to an advanced, inoperable phase, resulting in Matsuyama’s premature death.[14]

In the course of his testimony, Finkel offered an extensive discussion of the tumor-lymph nodes-metastasis (TNM) method for classifying gastric cancer into separate “stages,” from stage 0 to stage 4, with each higher stage signaling a more advanced cancer and carrying a statistically diminished chance for survival, as measured by the standard gastric cancer metric of five years cancer free after treatment.[15] , [16]
Patients with stage 0, in which the cancer is confined to the stomach lining, have a better than 90% survival rate, Finkel averred; at stage 1, the survival rate drops to between 60% and 80%; at stage 2, between 30% and 50%; at stage 3, between 10% and 20%; and at stage 4, less than 4%.[17] Finkel opined that, as a result of Birnbaum’s breach of the standard of care, Matsuyama lost the opportunity of having gastric

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cancer “diagnosed and treated in a timely fashion when it might still have been curable.”

Dr. Mark Peppercorn, a gastroenterologist, testified as an expert for the defense. He testified that Birnbaum did not deviate from the accepted standard of care over the course of his treatment of Matsuyama; that Matsuyama’s type of stomach cancer had “a different biology, a different characteristic from garden variety, if you want to use that poor term, cancer”; and that his type of cancer did not manifest symptoms until it was in an advanced stage. Peppercorn testified that staging of cancers is done by oncologists for treatment, not actuarial, purposes, with the following presumed five-year survival rates: at stage 1, from 60% to 90%; at stage 2, 25% to 40%; at stage 3, up to 10%; and at stage 4, “practically zero; less than [5%], probably.”

In addition to the medical expert testimony, the jury heard testimony from the plaintiff’s forensic economist, Dr. Dana Hewins. Hewins testified that, using the standard statistical measures and methods in his field, Matsuyama, had he not died when he did, could have been expected to work an additional 17.7 years, during which time Matsuyama’s net earnings from his income minus his personal consumption would have been $466,235.[18] Hewins also testified that Matsuyama could have been expected to live an additional 28.32 years (to age seventy-five), during which time the monetary value of his household services would have been $157,225. Thus, had Matsuyama attained his full work life and life expectancies, he would have contributed $623,460 to his household. Hewins did not offer any projections concerning what Matsuyama would have contributed in wages or services to his family had he died later than he did but earlier than his full work life and life expectancies.

After a six-day trial, the case went to the jury.[19] In response

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to special questions, the jury found Birnbaum negligent in Matsuyama’s treatment, but found him not grossly negligent. They also found that Birnbaum’s negligence was a “substantial contributing factor” to Matsuyama’s death, [20] and awarded Matsuyama’s estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, see note 51, infra, the jury awarded damages for loss of chance, which they calculated as follows: they awarded $875,000 as “full” wrongful death damages, [21] and found that Matsuyama was suffering from stage 2 adenocarcinoma at the time of Birnbaum’s initial negligence and had a 37.5% chance of survival at that time. They awarded the plaintiff “final” loss of chance damages of $328,125 ($875,000 multiplied by .375). Judgment entered against the defendants, jointly and severally, on the negligence-wrongful death count in the amount of $328,125, later amended to $281,310, see note 4, supra. A separate judgment entered against the defendants, jointly and severally, for damages in the amount of $160,000 on the counts for conscious pain and suffering.[22]

2. Loss of chance. Although we address the issue for the first time today, a substantial and growing majority of the States that have considered the question have indorsed the loss of chance doctrine, in one form or another, in medical malpractice actions.[23] We join that majority to ensure that the fundamental aims and

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principles of our tort law remain fully applicable to the modern world of sophisticated medical diagnosis and treatment.

The development of the loss of chance doctrine offers a window

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into why it is needed. The doctrine originated in dissatisfaction with the prevailing “all or nothing” rule of tort recovery. See generally King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, Yale L.J. 1353, 1365-1366 (1981) (King I). Under the all or nothing rule, a plaintiff may recover damages only by showing that the defendant’s negligence more likely than not caused the ultimate outcome, in this case the patient’s death; if the plaintiff meets this burden, the plaintiff then recovers 100% of her damages.[24] Thus, if a patient had a 51% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the estate is awarded full wrongful death damages.[25] On the other hand, if a patient had a 49% chance of survival, and the negligent misdiagnosis or treatment caused that chance to drop to zero, the plaintiff receives nothing. So long as the patient’s chance of survival before the physician’s negligence was less than even, it is logically impossible for her to show that the physician’s negligence was the but-for cause of her death, so she can recover nothing.[26] Thus, the all or nothing rule provides a “blanket release from liability for doctors and hospitals any time

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there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.” Herskovits v. Group Health Coop. of Puget Sound, 99 Wash. 2d 609, 614 (1983).

As many courts and commentators have noted, the all or nothing rule is inadequate to advance the fundamental aims of tort law. See generally Restatement (Second) of Torts § 901 (1979) (delineating distinct rationales for tort liability); K.S. Abraham, Forms and Functions of Tort Law 14-20 (3d ed. 2007) (same). Fundamentally, the all or nothing approach does not serve the basic aim of “fairly allocating the costs and risks of human injuries,” O’Brien v. Christensen, 422 Mass. 281, 288
(1996), quoting Vertentes v. Barletta Co., 392 Mass. 165, 171 (1984) (Abrams, J., concurring).[27] See King I, supra at 1377 (all or nothing rule places loss of chance losses “outside tort law,” thereby “distort[ing] the loss-assigning role of tort law”). The all or nothing rule “fails to deter” medical negligence because it immunizes “whole areas of medical practice from liability.” McMackin v. Johnson County Healthcare Ctr., 73 P.3d 1094, 1099 (Wyo. 2003), S.C., 88 P. 3d 491
(Wyo. 2004). It fails to provide the proper incentives to ensure that the care patients receive does not slip below the “standard of care and skill of the average member of the profession practising the specialty.” Brune
v. Belinkoff, 354 Mass. 102, 109 (1968). And the all or nothing rule fails to ensure that victims, who incur the real harm of losing their opportunity for a better outcome, are fairly compensated for their loss. See Delaney v. Cade, 255 Kan. 199, 209 (1994), quoting Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 Baylor L.Rev. 759, 760 (1992) (“the loss of chance doctrine serves to fairly compensate the plaintiff for the tortious deprivation of an opportunity to live longer or recover from a physical injury or condition inflicted by the defendant’s wrongful act or omission”).

As the Supreme Court of Wyoming recently stated:

“First, the loss of an improved chance of survival or improvement in condition, even if the original odds were

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less than fifty percent, is an opportunity lost due to negligence. Much treatment of diseases is aimed at extending life for brief periods and improving its quality rather than curing the underlying disease. Much of the American health care dollar is spent on such treatments, aimed at improving the odds. In the words of the Delaware Supreme Court, `[i]t is unjust not to remedy such a loss.’ Second, immunizing whole areas of medical practice from liability by requiring proof by more than fifty percent that the negligence caused the injury fails to deter negligence conduct. As Judge Posner wrote in DePass v. United States, `A tortfeasor should not get off scot free because instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim’s life.'”

McMackin v. Johnson County Healthcare Ctr., supra at 1099, quotin DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983) (Posner, J., dissenting). See Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St. 3d 483, 488 (1996), rev’g Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St. 2d 242 (1971) (“Rarely does the law present so clear an opportunity to correct an unfair situation as does this case before us. The time has come to discard the traditionally harsh view we previously followed and to join the majority of states that have adopted the loss-of-chance theory”).

Courts adopting the loss of chance doctrine also have noted that, because a defendant’s negligence effectively made it impossible to know whether the person would have achieved a more favorable outcome had he received the appropriate standard of care, it is particularly unjust to deny the person recovery for being unable “to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass.” Hicks v. United States, 368 F.2d 626, 632
(4th Cir. 1966).

Despite general agreement on the utility of the loss of chance doctrine, however, courts adopting it have not approached loss of chance in a uniform way.[28] See Annot., Medical Malpractice: “Loss of Chance” Causality, 54 A.L.R.4th 10 (1987 Supp. 2008)

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(encyclopedic discussion of cases adopting distinct approaches). The unsettled boundaries of the doctrine have left it open to criticisms similar to those that the defendants have leveled here: that the loss of chance doctrine upends the long-standing preponderance of the evidence standard; alters the burden of proof in favor of the plaintiff; undermines the uniformity and predictability central to tort litigation; results in an expansion of liability; and is too complex to administer. See generally T.A. Weigand, Loss of Chance in Medical Malpractice: The Need for Caution, 87 Mass. L.Rev. 3 (2002); D.A. Fischer, Tort Recovery for Loss of a Chance, 36 Wake Forest L.Rev. 605 (2001). See also Smith
v. Parrott, 833 A.2d 843, 847-849 (Vt. 2003); Fennell v. Southern Maryland Hosp. Ctr., Inc., 320 Md. 776, 789-784 (1990). While these objections deserve serious consideration, the doctrine of loss of chance, when properly formulated, survives these criticisms.

Addressing the specific arguments advanced by the defendants is useful for delineating the proper shape of the doctrine. The defendants argue that the loss of chance doctrine “lowers the threshold of proof of causation” by diluting the preponderance of the evidence standard that “has been the bedrock of the Massachusetts civil justice system.” Some courts have indeed approached the issue of how to recognize loss of chance by carving out an exception to the rule that the plaintiff must prove by a preponderance of the evidence that the defendant “caused” his injuries. See, e.g., Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 607-608 (1984) (adopting rule that “permits the case to go to the jury on the issue of causation with less definite evidence of probability than the ordinary tort case,” and requiring jury to “find for the defendant unless they find a

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probability that defendant’s negligence was a cause of plaintiff’s injury” [emphasis in original]). We reject this approach. “It is fundamental that the plaintiff bears the burden of establishing causation by a preponderance of the evidence.” Johnson v. Summers, 411 Mass. 82, 91
(1991). Therefore, in a case involving loss of chance, as in any other negligence context, a plaintiff must establish by a preponderance of the evidence that the defendant caused his injury.

However, “injury” need not mean a patient’s death. Although there are few certainties in medicine or in life, 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. See Herskovits v. Group Health Coop, of Puget Sound, 99 Wash. 2d 609, 616 (1983); King I, supra at 1386-1387. See als Glicklich v. Spievack, 16 Mass. App. Ct. 488, 494-495 (1983). That probability of survival is part of the patient’s condition. When a physician’s negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real injury. The patient has lost something of great value: a chance to survive, to be cured, or otherwise to achieve a more favorable medical outcome. See Herskovits v. Group Health Coop, of Puget Sound, supra at 618, quoting James v. United States, 483 F. Supp. 581, 587 (N.D. Cal. 1980) (“no one can say that the chance of prolonging one’s life or decreasing suffering is valueless”). Thus we recognize loss of chance not as a theory of causation, but as a theory of injury. See Alexander v. Scheid, 726 N.E.2d 272, 279 (Ind. 2000) (“loss of chance is better understood as a description of the injury than as either a term for a separate cause of action or a surrogate for the causation element of a negligence claim”) Jorgenson v. Vener, 616 N.W.2d 366, 371 (S.D. 2000) (“The key to a successful application of this doctrine is recognizing and valuing the lost chance as the compensable injury . . .”).[29]

Recognizing loss of chance as a theory of injury is consistent

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with our law of causation, which requires that plaintiff’s establish causation by a preponderance of the evidence. See Johnson v. Summers, supra at 91. See also Woronka v. Sewall, 320 Mass. 362, 365 (1946). In order to prove loss of chance, a plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s likelihood of achieving a more favorable outcome to be diminished. That is, the plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s injury, where the injury consists of the diminished likelihood of achieving a more favorable medical outcome. See Jorgenson v. Vener, supra (“Properly applied, the loss of chance doctrine does not alter or eliminate the requirement of proximate causation. Rather, a plaintiff must still prove by a preponderance of evidence, or more likely than not, that the defendant’s actions reduced her chance of a better outcome”); King, Jr., “Reduction of Likelihood” Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Memphis L.Rev. 491, 492 (1998) (King II). The loss of chance doctrine, so delineated, makes no amendment or exception to the burdens of proof applicable in all negligence claims.[30]

We reject the defendants’ contention that a statistical likelihood of survival is a “mere possibility” and therefore “speculative.” The magnitude of a probability is distinct from the degree of confidence with which it can be estimated. A statistical survival rate cannot conclusively determine whether a particular patient will survive a medical condition. But survival rates are not random guesses. They are estimates based on data obtained and analyzed scientifically and accepted by the relevant medical community as part of the repertoire of diagnosis and treatment, as applied to the specific facts of the plaintiff’s case. See Glicklich v. Spievack, supra at 494 n. 4 (recognizing established use of clinical staging systems for cancer in medical prognoses). Where credible evidence

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establishes that the plaintiff’s or decedent’s probability of survival is 49%, that conclusion is no more speculative than a conclusion, based on similarly credible evidence, that the probability of survival is 51%.

The defendants also point out that “[t]he cause, treatment, cure and survivability related to cancer is tremendously uncertain and complex,” and argue that loss of chance is “rife with practical complexities and problems.” Such difficulties are not confined to loss of chance claims. A wide range of medical malpractice cases, as well as numerous other tort actions, are complex and involve actuarial or other probabilistic estimates. Wrongful death claims, for example, often require, as part of the damages calculation, an estimate of how long the decedent might have lived absent the defendant’s conduct. The calculation of damages in a claim for lost business opportunities may be similarly complex. See, e.g., Roblin Hope Indus., Inc. v. J.A. Sullivan Corp. (No. 2), 11 Mass. App. Ct. 76, 79 (1980).[31]

The key is the reliability of the evidence available to the fact finder. In earlier periods, Massachusetts courts grappling with what we would now call loss of chance claims often lacked reliable expert evidence of what the patient’s chances of survival or recovery would have been absent the alleged negligence. See, e.g., Wright v. Clement, 287 Mass. 175, 176 (1934) (affirming directed verdict for defendant despite evidence of negligent failure to diagnose scarlet fever and negligence in moving decedent from maternity ward because “there is nothing to show any probability that [the patient] would have recovered or lived longer or suffered less, if due care had been used”). More recently, as we noted above, at least for certain conditions, medical science has progressed to the point that physicians can gauge a patient’s chances of survival to a reasonable degree of medical certainty, and indeed routinely use such statistics as a tool of medicine. See note 15 supra. Reliable modern techniques of gathering and

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analyzing medical data have made it possible for fact finders to determine based on expert testimony — rather than speculate based on insufficient evidence — whether a negligent failure to diagnose a disease injured a patient by preventing the disease from being treated at an earlier stage, when prospects were more favorable. See Cusher v. Turner, 22 Mass. App. Ct. 491, 498 (1986) (upholding verdict against physician for negligent failure to diagnose ovarian cancer, on theory that “if such tests had been ordered . . . the cancer would have been discovered and removed, preventing its spread throughout the plaintiff’s body”); Glicklich v. Spievack, supra at 494-495 (reversing judgment not withstanding verdict for defendant where there was expert evidence that negligent failure to diagnose patient’s breast cancer caused cancer to progress from “Stage I,” in which her chances of surviving ten years with proper treatment would have been 94%, to “stage II,” in which her chances of surviving ten years with proper treatment were “50% or less”). The availability of such expert evidence on probabilities of survival makes it appropriate to recognize loss of chance as a form of injury.[32]
Cf. Wright v. Clement, supra. See also Aasheim v. Humberger, 215 Mont. 127, 133 (1985) (noting that loss of chance “recognizes the realities inherent in medical negligence litigation”). Through appropriate expert evidence, a plaintiff in a medical malpractice case may be able to sustain her burden of showing that, as a result of defendant’s negligence, a decedent suffered a diminished likelihood of achieving a more favorable medical outcome.

We are unmoved by the defendants’ argument that “the ramifications of adoption of loss of chance are immense” across “all areas of tort.” We emphasize that our decision today is limited to loss of chance in medical malpractice actions.[33] Such cases are particularly well suited to application of the loss of chance doctrine.

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See Restatement (Third) of Torts: Liability for Physical Harm § 26 comment n (Proposed Final Draft No. 1, 2005) (Draft Restatement). First, as we noted above, reliable expert evidence establishing loss of chance is more likely to be available in a medical malpractice case than in some other domains of tort law. Id. Second, medical negligence that harms the patient’s chances of a more favorable outcome contravenes the expectation at the heart of the doctor-patient relationship that “the physician will take every reasonable measure to obtain an optimal outcome for the patient.” Id. See K.S. Abraham, Forms and Functions of Tort Law 117-118 (3d ed. 2007) (discussing argument that “health care providers undertake to maximize a patient’s chances of survival, [and so] their failure to do so should be actionable. Ordinary actors who negligently risk causing harm have not undertaken such a duty”). Third, it is not uncommon for patients to have a less than even chance of survival or of achieving a better outcome when they present themselves for diagnosis, so the shortcomings of the all or nothing rule are particularly widespread. Finally, failure to recognize loss of chance in medical malpractice actions forces the party who is the least capable of preventing the harm to bear the consequences of the more capable party’s negligence. See Draft Restatement, supra at 326 comment n.

In sum, whatever difficulties may attend recognizing loss of chance as an item of damages in a medical malpractice action, these difficulties are far outweighed by the strong reasons to adopt the doctrine. We turn now to the defendants’ argument that the wrongful death statute, G.L. c. 229, § 2, does not allow for loss of chance.

3. Wrongful death statute. The wrongful death statute imposes liability on anyone who “by his negligence causes the death of a person.” G.L. c. 229, § 2. The defendants contend that the language of the statute — “causes the death” — precludes loss of chance claims and allows only claims that the defendant was a but-for cause of the decedent’s death. This interpretation is not required by the wrongful death statute.

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The purpose of the wrongful death statute is “to compensate a decedent’s survivors for the loss of the decedent’s life.” Thibert v Milka, 419 Mass. 693, 695 (1995). The origin of wrongful death actions in Massachusetts can be traced to England, where such actions are said to have sprung from “the ancient custom of compensating for wrongfully inflicted death.” S.M. Speiser J.E. Rooks, Jr., Recovery for Wrongful Death § 1.1 (4th ed. 2005 Supp. 2007). “In the very early days of the Anglo-Saxons, homicide in all forms was regarded as a civil offense, a private wrong. In order to prevent feuds among clannish groups and to encourage peace, what we now call `damages’ for the killing of a person were payable to the deceased’s relatives.” Id. at § 1:3. When the earliest colonists arrived in what is now Massachusetts, they brought with them and embraced as their own common law the wrongful death cause of action. See id. at § 1.4, and cases cited (“the Massachusetts courts during the colonial period had consistently allowed compensation in death cases”).[34]

In the early Nineteenth Century, however, the common-law development of wrongful death actions was sidetracked by a single English decision, later repudiated by this court. In 1808, in Baker v. Bolton, 1 Campb. 493 (1808), a case involving a husband’s suit against owners of a stagecoach that had overturned, killing his wife, Lord Ellenborough, an English judge, stated that “in a civil court, the death of a human being could not be complained of as an injury.” See S.M. Speiser J.E. Rooks, Jr., Recovery for Wrongful Death, supra at §§ 1.1, 1.2; Gaudette v. Webb, 362 Mass. 60, 68 (1972). For various reasons that do not concern us here, Lord Ellenborough’s dictum quickly came to stand for the proposition, in both English and American courts, including this court, that no cause of action for wrongful death existed apart from statute. See, e.g., Carey v. Berkshire R.R., 1 Cush. 475, 478 (1848), citin Baker v. Bolton, supra (holding that “the death of a human being is not the ground of an action for damages”).

Even as it was being cited as authority, however, Lord Ellenborough’s

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rule came under harsh criticism from courts and scholars as both unfounded and barbaric. See Gaudette v. Webb, supra at 69-71. In Moragne
v. States Marine Lines, Inc., 398 U.S. 375 (1970), the United States Supreme Court rejected Lord Ellenborough’s dictum and held that a common-law action for wrongful death could be brought under United States maritime law. After a thorough and detailed historical discussion, the Supreme Court concluded that “the history of the common-law rule indicates that [Lord Ellenborough’s rule] was based on a particular set of factors that [have] long since been thrown into discard even in England, and that had never existed in this country at all.” Id. at 381.[35] Reasoning that where a duty exists at common law, “nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death,” id., the Court therefore rejected Lord Ellenborough’s rule and held as a matter of common law that one may bring a wrongful death action under general maritime law. Although the Federal Death on the High Seas Act, 46 U.S.C. §§ 761, 762 (as then codified), did not expressly provide any remedy for the wrongful death at issue in the case[36] , the Court held that act was never meant to preempt the “evolving duty of seaworthiness” from which the courts would recognize a common-law action for wrongful death. See id. at 399-400.

In Gaudette v. Webb, supra, this court, relying in part on the Moragne
case, put Lord Ellenborough’s mischief to rest in the Commonwealth. Rejecting the authority of Lord Ellenborough’s dictum, we held that “the law in this Commonwealth has . . . evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin, and we

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so hold.” Id. at 71. In holding that wrongful death claims existed at common law, this court concluded that claims under the wrongful death statute are common-law claims that continue to evolve, even as the wrongful death statutes impose certain procedural requirements on such claims. See Id. at 71-72.

“[O]ur wrongful death statutes will no longer be regarded as `creating the right’ to recovery for wrongful death. They will be viewed rather as: (a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant’s culpability; (b) prescribing the range of damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within a specified period of time, as a limitation upon the remedy and not upon the right.”

Id. at 71. Thus, in Gaudette v. Webb, supra, we allowed a wrongful death claim to be brought under the wrongful death statute where the terms of the statute did not provide the plaintiff with any right to recover. Id.
at 71-73.

Like all common-law causes of action, our common law of wrongful death evolves to meet changes in the evolving life of the Commonwealth. Se Sullivan v. Boston Gas Co., 414 Mass. 129, 134 (1993) (“Sound principles of common law evolve out of the interaction of the infinite variety of new patterns of human activity with principles crafted in response to already-experienced situations”); Gaudette v. Webb, supra. Although wrongful death did not traditionally encompass loss of chance of survival, we conclude that claims for loss of chance of survival are sufficiently akin to wrongful death claims as to be cognizable under the wrongful death statute, which governs the procedural requisites for such claims. See Gaudette v. Webb, supra at 71.[37] Now that medical science has developed credible methods of quantifying

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the extent to which the malpractice damaged the patient’s prospects for survival, and in light of the strong public policy favoring compensation for victims of medical malpractice and the deterrence of deviations from appropriate standards of care, loss of chance of survival rightly assumes a place in our common law of wrongful death, and we so hold.[38]

The development of our law of wrongful death to encompass loss of chance of survival claims is entirely consistent with this court’s holding in Gaudette v. Webb, 362 Mass. 60, 71 (1972), [39]

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that the wrongful death statute will be viewed in part as “requiring that damages recoverable for wrongful death be based upon the degree of the defendant’s culpability.” Our method of calculating loss of chance damages furthers and refines this requirement. Moreover, it remedies the illogical and harsh results of a rule that would permit a person who had a prenegligence chance of survival of 51 % to recover full damages while denying all recovery to the person whose prenegligence chance of survival was 49%.

We turn now to the proper measure of damages in a loss of chance medical malpractice case.

4. Damages. Our conclusion that loss of chance is a separate, compensable item of damages in an action for medical malpractice does not fully resolve the issues on appeal. We must consider, among other things, how the loss of the likelihood of a more favorable outcome is to be valued. The first question is what is being valued. In this case, the patient’s prospects for achieving a more favorable outcome were measured in terms of the patient’s likelihood of surviving for a number of years specified by the relevant medical standard: for gastric cancer, the five-year survival rate.[40] There is no single measure that will apply uniformly to all medical malpractice cases. See, e.g., Renzi v. Paredes, post 38, 42 (2008) (employing ten-year survival metric for breast cancer); Alexander v. Scheid, 726 N.E.2d 272, 279 (Ind. 2000) (measuring loss of chance damages in terms of “decreased life expectancy,” measured in years); DeBurkarte v. Louvar, 393 N.W.2d 131, 135 (Iowa 1986) (employing ten-year survival metric for breast cancer). Precisely what yardstick to use to measure the reduction in the decedent’s prospects for survival — life expectancy, five-year survival, ten-year survival, and so on — is a question on which the law must inevitably bow to some extent to the shape of the available medical evidence in each particular case. Se McMackin v. Johnson County Healthcare Ctr., 73 P.3d 1094, 1100 (Wyo. 2003) (noting that “no clear-cut rule” can govern all measures of damages in loss of chance cases).

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A second, more challenging issue is how to calculate the monetary value for the lost chance. Courts adopting the loss of chance doctrine have arrived at different methods for calculating such damages. See generall Mead v. Adrian, 670 N.W.2d 174, 187-189 (Iowa 2003) (Cady, J., concurring specially). The most widely adopted of these methods of valuation is the “proportional damages” approach. See Cahoon v. Cummings, 734 N.E.2d 535, 541
(Ind. 2000), and cases cited (holding that proportional damages is “the better approach”). See also Delaney v. Cade, 255 Kan. 199, 217 (1994) (proportional damages approach constitutes proper view); McKellips v Saint Francis Hosp., Inc., 741 P.2d 467, 475-477 (Okla. 1987) (same). Under the proportional damages approach, loss of chance damages are measured as “the percentage probability by which the defendant’s tortious conduct diminished the likelihood of achieving some more favorable outcome.” King I, supra at 1382. The formula aims to ensure that a defendant is liable in damages only for the monetary value of th portion of the decedent’s prospects that the defendant’s negligence destroyed. In applying the proportional damages method, the court must first measure the monetary value of the patient’s full life expectancy and, if relevant, work life expectancy as it would in any wrongful death case. But the defendant must then be held liable only for the portion of that value that the defendant’s negligence destroyed. See King II, supra
at 542.

Deriving the damages for which the physician is liable will require the fact finder to undertake the following calculations:[41]

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(1) The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute, G.L. c. 229, § 2, or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decedent’s death or injury.[42]
(2) The fact finder must next calculate the patient’s chance of survival or cure immediately preceding (“but for”) the medical malpractice.
(3) The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice.
(4) The fact finder must then subtract the amount derived in step 3 from the amount derived in step 2.
(5) The fact finder must then multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damages award for loss of chance.

To illustrate, suppose in a wrongful death case that a jury found, based on expert testimony and the facts of the case, that full wrongful death damages would be $600,000 (step 1), that the patient had a 45% chance of survival prior to the medical malpractice (step 2), and that the physician’s tortious acts reduced

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the chances of survival to 15% (step 3). The patient’s chances of survival were reduced 30% (i.e., 45% minus 15%) due to the physician’s malpractice (step 4), and the patient’s loss of chance damages would be $600,000 multiplied by 30% for a total of $180,000 (step 5). See, e.g. Mead v. Adrian, supra at 186-187 (Cady, J., concurring specially) McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okla. 1987).

We are not unmindful of the criticism of the proportional damages approach.[43] However, we are in accord with those courts that have determined that the proportional damages method is the most appropriate way to quantify the value of the loss of chance for a more favorable outcome, because it is an easily applied calculation that fairly ensures that a defendant is not assessed damages for harm that he did not cause.[44] See, e.g., Pipe v. Hamilton, 274 Kan. 905, 910 (2002) (“The proportional damage approach ensures that a plaintiff recovers only the loss attributable to the loss of chance and not for an arbitrary amount awarded by the jury or for the total damages sustained”); Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St. 3d 483, 489 (1996) (proportional damages approach “provides an equitable method of apportioning damages consistent with the degree of fault attributable to the health care provider. Thus, rather than compensating the plaintiff for all damages allowed in a malpractice or wrongful death action, the defendant is liable only for those damages attributable to his percentage of negligence”).

From our analysis thus far, it should be evident that the value of “the loss of opportunity to allow events to play out in order to see if the plaintiff’s condition was in fact amenable to restoration,” King II supra at 533, is a matter beyond the average juror’s ken; the evidence will necessarily come from experts. Expert testimony is required to ascertain what measure of a more

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favorable outcome is medically appropriate (for example, five-year survival as in this case), to determine what statistical rates of survival apply in what circumstances, for example, a 37.5% chance of survival, and to apply these rates to the particular clinical circumstances of the patient.

The defendants protest that such reliance on experts is likely to result in “imprecise” and “skewed” evidence on which to base a damages award. Our response is both general and specific. First, as a general matter, we disavow the defendants’ claim that reliance on statistical evidence is “generally disfavored in the law.” As we have noted, probabilistic evidence, in the form of actuarial tables, assumptions about present value and future interest rates, statistical measures of future harm, and the like, is the stock-in-trade of tort valuation. See DePass
v. United States, 721 F.2d 203, 209-210 (7th Cir. 1983) (Posner, J., dissenting). For decades, judges, lawyers, jurors, and litigants have shown themselves competent to sift through such evidence in a variety of contexts, from mass toxic torts to single-car collisions. Second, in this particular case, all of the medical witnesses testified that the staging of cancer and the use of survival or recovery statistics derived therefrom are common practice with respect to gastric cancer. See note 15, supra. To the extent that expert testimony concerning the statistical likelihood of a more favorable outcome of Matsuyama’s condition, or of any medical condition, may manifest a statistical bias or any other indicia of unreliability, that is a matter to be vetted in a pretrial motion to exclude the expert testimony, or at trial on cross-examination, or through the testimony of a defendant’s own expert. See Cusher v. Turner, 22 Mass. App. Ct. 491, 498 n. 9 (1986), citing Glicklich v. Spievack, 16 Mass. App. Ct. 488, 494 n. 4 (1983) (in medical malpractice case, “[p]recise evidence as to the `staging’ of the cancer is not required . . .”). See generally King II, supra at 546-547 (successful application of loss of chance doctrine depends on the quality of the appraisal of the decreased likelihood of a more favorable outcome caused by defendants’ tortious conduct). Our decision today should not be construed to limit a defendant’s right or ability vigorously to challenge the statistical evidence.

We move now to a consideration of the merits.

5. Evidence of causation. As a preliminary matter, we conclude

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there is no merit to the defendants’ argument that the evidence does not support a verdict against Birnbaum for loss of chance. As we stated above, the crux of liability for loss of chance is that Birnbaum’s negligence caused a diminution in Matsuyama’s likelihood of achieving a more favorable outcome for his medical condition. From the record summarized above, there was ample evidence from which the jury reasonably could conclude that Birnbaum committed a breach of the standard of care by failing to take the necessary steps earlier in his treatment of Matsuyama to determine through appropriate medical testing whether Matsuyama had gastric cancer. The jury were also well within their charge to conclude from the evidence that, but for Birnbaum’s breach of care, Matsuyama’s chances of survival would have been greater.[45] That the jury may have derived their conclusions by crediting the testimony of the plaintiff’s expert over the testimony of the defense expert was in the normal course of their acting as a jury.[46]

The defendants claim that the evidence was insufficient to show that, as the judge instructed the jury, “an act or omission of Birnbaum was a substantially contributing factor to the death of Mr. Matsuyama.” The “substantial contributing factor” test is useful in cases in which damage has multiple causes, including but not limited to cases with multiple tortfeasors in which it may be impossible to say for certain that an individual defendant’s conduct was a but-for cause of the harm, even though it can be shown that the defendants, in the aggregate, caused the harm.[47]

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The substantial contributing factor test is less appropriate, however, as an instruction as to cause in a loss of chance case in which one defendant’s malpractice alone is alleged to have caused the victim’s diminished likelihood of a more favorable outcome.[48] The proper test in a loss of chance case concerning the conduct of a single defendant is whether that conduct was the but-for cause of the loss of chance.

In the circumstances of this case, the judge’s use of the “substantial contributing factor” test did not prejudice the defendant. Requiring the plaintiff to prove that the negligence was a substantial contributing factor in Matsuyama’s death — rather than merely requiring the plaintiff to prove that the negligence reduced Matsuyama’s chance of survival — arguably imposed a heightened burden of proof on the plaintiff. Indeed, it was Medical Associates, not the plaintiff, who proposed jury instructions incorporating the test that the “negligence was a substantial contributing cause of the alleged injury.” The judge also clarified the “substantial contributing factor” instruction in a way that, while somewhat inartful, suggested that the jury should understand “substantial contributing factor” as indicating that the plaintiff was required to show that Birnbaum’s negligence caused a loss of chance of survival. The judge instructed the jury that the word “substantial” “doesn’t mean that Mr. Matsuyama’s chance of survival was fifty percent or greater, only that there was a fair chance of survival or cure had Dr. Birnbaum not been negligent

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and had he conformed to the applicable standard of care.” The judge’s formulation did not use the words “but-for cause,” but his definition of “substantial” clearly focused the jury’s attention on the idea that Birnbaum’s negligence, if any, had to be a but-for cause of Matsuyama’s losing a “fair chance of survival.”[49]

We turn now to the defendants’ claims of error in the jury instructions.

6. Jury instructions, a. Valuation. The defendants challenge the jury instructions on valuation. Even were we to accept the loss of chance doctrine, the defendants say, and even if the evidence supports a finding against Birnbaum on that issue, the verdict against him must be reversed and the case retried because the judge gave improper instructions on valuation. While two instructions in particular were less than ideal, reversal is not required.[50]

We do not agree that the judge’s instructions and special jury verdict “forced the jury to find a loss of chance and precluded the defense from arguing that there was no loss of a substantial chance of survival based on the evidence.” The defendants’ focus here is on question 6 of the special jury questions, in particular the “Note” included in that question, and the judge’s related instructions. That special jury question included survival rates for each stage of gastric cancer.[51] ,[52] We agree with the defendants that the determination of chance of survival was for the jury to decide,

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based on the conflicting evidence before them, and should not have been included in the special question.[53] It will generally not be necessary for the judge to marshal such evidence for the jury.

However, viewing the instructions as a whole, we conclude that the jury charge did not overstep the judge’s broad discretion to fashion jury instructions. See Cahalane v. Proust, 333 Mass. 689, 692 (1956); General Dynamics Corp. v. Federal Pac. Elec. Co., 20 Mass. App. Ct. 677, 684
(1985). “Our decisions have consistently upheld the action of trial judges in putting before the jury possible conclusions warranted by the evidence in language that is `comprehensively strong, rather than hesitatingly barren, or

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ineffective.'” Cahalane v. Proust, supra at 692-693, quoting Whitney v Wellesley Boston St. Ry., 197 Mass. 495, 502 (1908). Nothing in the judge’s instructions or the special questions themselves would indicate to a reasonable juror that the judge was weighing in on the ultimate question of liability or “forcing” the jury to find a certain damages amount, as the defendants maintain. Throughout his jury charge, the judge took pains to emphasize that the jury’s view of the evidence is the only view that mattered. Finally, the defendants argued throughout the trial, and forcefully in closing argument, that Matsuyama was in fact not harmed by Birnbaum’s actions; there was no indication that any ruling or statement of the judge precluded the defendants from mounting a vigorous defense. The judge’s instructions and jury verdict did not impermissibly weigh in on the question of liability.

Further, for the reasons we have stated above, the judge did not commit reversible error in instructing on the viability of loss of chance as an item of damages, and he correctly chose to apply the proportional method to determine damages for Matsuyama’s loss of chance. In conformity with the formula we have set out supra, he also required on the special jury questions that the jury determine full wrongful death damages and the percentage of Matsuyama’s chances of survival but for Birnbaum’s negligence. We recognize that the judge did not complete the proportional instruction we outlined above. As the defendants point out, the judge did not require the jury to determine Matsuyama’s chance of survival as a result of Birnbaum’s negligence, and to subtract that figure from Matsuyama’s chance of survival prior to the negligence. In terms of the formula discussed supra, the judge correctly instructed the jury as to step 1 and step 2, but omitted steps 3 and 4. This compelled the jury to assume that Birnbaum’s negligence (if any) reduced Matsuyama’s chances of survival to zero: $875,000 multiplied by (.375 minus 0) equals $328,125, the damages awarded for loss of chance. In fact, the conflicting testimony at trial was that as a result of Birnbaum’s negligence, Matsuyama had anywhere from 0 to a 5% chance of survival.[54] The judge should not have removed from the jury’s consideration the question whether and to what extent Birnbaum’s

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negligence left Matsuyama with any chance of survival, both critical factors in valuing Matsuyama’s lost chance. See Cahalane v. Proust, supra. See also G.L. c. 231, § 81.[55]

However, a remand will not be necessary. The record before us shows that both prior to and after the jury instructions, the defendants objected to question 6, not on the ground of the judge’s apportionment formula but on more general, and wholly different, grounds.[56] , [57]
This lack of a specific objection on point is fatal to their detailed objection on appeal. See Flood v. Southland Corp., 416 Mass. 62, 66
(1993) (“A general objection to a portion of a charge will not save appellate rights”). The defendants did argue in a supplemental trial brief that if this court were to recognize loss of chance, they should be entitled to an apportionment formula that takes account of the “difference” in

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likelihood of survival, see note 57, supra. However, the defendants’ proposed jury instructions contained no provision for calculating this difference. When the judge charged the jury in a way that lacked such a provision, none of the defendants’ numerous objections either before or after the jury charge specifically touched on this issue. See note 56 supra. Nor have the defendants directed our attention to anything that would suggest that their general objections should be understood in context to refer specifically to this issue. Accordingly, we deem it waived. See Neagle v. Massachusetts Bay Transp. Auth., 45 Mass. App. Ct. 345, 348-349 (1998) (where counsel did not request special jury question on particular issue, and did not object to its omission from special jury questions, “this failure resulted in a waiver of the [party’s] rights to have the issue . . . submitted to the jury and to raise the issue on appeal”).[58]

b. Gross negligence. At the close of evidence, but prior to closing arguments, the judge allowed the plaintiff’s oral motion to amend her complaint to add a claim against Birnbaum for gross negligence. See note 19, supra. The judge subsequently proceeded to charge the jury on gross negligence.[59] In response to a special question, the jury found Birnbaum not grossly negligent in his care and treatment of Matsuyama. Nevertheless, Birnbaum asserts on appeal that the judge, by impermissibly commenting

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on the evidence of gross negligence in his charge to the jury, left jurors with the impression that, at the very least, Birnbaum should be found liable in negligence.[60] See G.L. c. 231, § 81 (“The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law”). We disagree.

Where, as here, the judge had determined that the evidence warranted an instruction on gross negligence, the judge correctly gave such an instruction, which had been requested by the plaintiff. In light of the evidence from expert and other medical witnesses that Birnbaum missed or ignored Matsuyama’s known risk factors for gastric cancer for a period of almost four years, as well as Birnbaum’s own testimony that the capitation contract he voluntarily entered into caused him “difficulty” in providing patients like Matsuyama with “the best medical care,” it was not error for the judge to include instructions on gross negligence.[61]
See Altman v. Aronson, 231 Mass. 588, 591-592 (1919) (“The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence”).

Judgment affirmed.

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