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Matsuyama (P) disclosed complaints of gastric distress dating back to 1988. In 1994 a previous physician had noted that P might need an upper gastrointestinal series or small bowel follow-through to evaluate further his symptoms. P complained of 'heartburn and difficulty breathing associated with eating and lifting.' P had a history of smoking, was at a significantly higher risk for developing gastric cancer than was the general population of the United States. D did not order any tests to determine the cause of the complaints. D diagnosed gastrointestinal reflux disease and recommended over-the-counter medications to relieve the symptoms. The same result happened in October 1996, when Matsuyama returned for a sick visit, complaining that his heartburn was worse and that he had gastric pain after eating. By 1998, D knew that P had all the symptoms for cancer but failed to make the connection or to tell P. Eventually it was discovered that P had cancer. P sued. A battle of the experts ensued, and the loss of chance P suffered for not being treated earlier. 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%]” were presented to the jury. The jury found Birnbaum (D), 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 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. D appealed.

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