Loss of Chance, Probabilistic Cause, and Damage Calculations: The Error in Matsuyama v. Birnbaum and the Majority Rule of Damages in Many Jurisdictions More Generally

Authors

Robert J. Rhee, University of Maryland Francis King Carey School of LawFollow

Document Type

Article

Publication Date

2013

Keywords

loss-of-chance doctrine, damages, medical malpractice

Abstract

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

Publication Citation

1 Suffolk University Law Review Online 39 (2013).

Disciplines

Medical Jurisprudence

Digital Commons Citation

1 Suffolk University Law Review Online 39 (2013).