In its decision filed on May 31, 2013, the Minnesota Supreme Court held that in a medical malpractice action, a patient may recover damages when a physician’s negligence causes the patient to lose a chance of recovery or survival. The Minnesota Supreme Court held, “Because we conclude that Minnesota law permits recovery for “loss of chance” in a medical malpractice action, we affirm [the appellate decision of the Court of Appeals].”
The Underlying Facts
The medical malpractice plaintiffs’ daughter was born in Minnesota on June 12, 2006. Because she was about 5 weeks premature, she spent the first 16 days of her life in the hospital’s neonatal intensive care unit for mild respiratory distress and pulmonary hypertension. When her mother first took her home from the hospital on June 28, 2006, she noticed a small lump on the baby’s left buttock.
The next day, the mother brought the baby to the medical malpractice defendants (a pediatrician and the family practice that employed her) for her 2-week well-baby check during which the mother alleges that she showed the defendant physician the lump on the baby’s buttock and that the physician told her that the lump, which was pea-sized and movable under the skin, might be a cyst and that she would keep an eye on it. The mother alleges that she discussed the lump with the defendant physician during the child’s 2-month, 4-month, 6-month, and 9-month well-baby checks, which the defendant denied. By the time of the 9-month well-baby check, the lump was three centimeters in diameter and was large enough to protrude from the child’s buttock and push up against her soft tissue.
On June 14, 2007, at the time of the scheduled 1-year well-baby check, the defendant physician first documented information about a “lump” in the medical chart, allegedly at a different spot than was discussed earlier with the mother. The physician’s note in the medical chart described the lump as follows: “[L]ump on buttock. [child] [h]as had small lump on left buttock which had been unchanged, now has gotten larger. Also with redness in left perianal area. No diarrhea sometimes seems to be tender when wiping, other times doesn’t bother her” along with the additional notation: “[L]eft perianal eythmea, mass palpitated, approximately 4 cm. diameter extending to buttock. Non-tender.”
The defendant physician referred the mother and her child to another pediatrician who subsequently referred them to a pediatric surgeon. The lump was confirmed as cancer: a rare and aggressive childhood cancer known as alveolar rhabdomyosarcoma (ARS), which was diagnosed as stage IV and had metastasized. The child began intensive chemotherapy, followed by surgery and radiation therapy. Physicians at the Memorial Sloan-Kettering Cancer Center in New York City performed surgery to remove the child’s cancer and confirmed the cancer but as stage III.
The Medical Malpractice Lawsuit
On April 6, 2009, the child’s parents filed their medical malpractice lawsuit against the medical malpractice defendants, alleging that they negligently failed to timely diagnose their child’s cancer or refer her to a specialist for diagnosis and treatment. They further alleged that their child’s cancer was “curable” if timely diagnosed, but now her cancer most likely is fatal.
The plantiffs’ medical expert was ready to testify that based on the progression of the cancer prior to the correct diagnosis and the extent of metastasis, the child’s chance of survival was only 40%; that even though the overall survival rate for ARS is 60%, the child’s chances of survival if the cancer had been timely diagnosed and treated “would have been much higher than 60 percent” because the capacity to develop distant metastases—the hallmark of stage IV ARS—”probably is not in the biology of her particular cancer.”
The trial court granted summary judgment in favor of the medical malpractice defendants, concluding that Minnesota law does not permit a patient to recover damages when a physician’s negligence causes the patient to lose only a chance of recovery or survival.
The Loss Of Chance Doctrine
The Minnesota Supreme Court’s opinion stated, “Under the loss of chance doctrine, a patient may recover damages when a physician’s negligence causes the patient to lose a chance of recovery or survival … The fundamental principle underlying the loss of chance doctrine is that “the plaintiff’s chance of survival itself has value” … In a loss of chance case, the plaintiff must sustain the burden of proving that “the defendant negligently deprived her of a chance of a better outcome” … Assuming that the plaintiff satisfies that burden, then ‘the defendant should be liable for the value of the chance he has negligently destroyed.'”
The Minnesota Supreme Court stated, “the injury that lies at the heart of the [plaintiffs’] medical malpractice action is a claim that [the defendant physician’s] alleged negligence increased the risk that [the child’s] cancer would recur and decreased her chances of survival—an archetypal loss of chance claim in a failure-to-diagnose cancer case.”
In the case before it, the Minnesota Supreme Court stated that the issue presented was whether Minnesota law allows a patient to recover damages when a physician’s negligence causes the patient to lose a chance of recovery or survival, to which the Minnesota Supreme Court responded, “We conclude that it does.”
The Minnesota Supreme Court stated that the loss of chance doctrine developed in response to a problem that is particularly acute in the medical malpractice context, especially in the case of a physician who fails to provide a timely diagnosis or treatment of a disease. “We have recognized that in such a situation, the plaintiff does not claim that “the disease itself . . . was caused by the physician,” but that the “physician’s delay resulted in harm that could have been prevented” … It is that harm to the chance of survival that a plaintiff seeks to recover in a loss of chance case … the “loss of chance” doctrine recognizes that a patient values her chances of recovery or survival and she suffers a real injury when a physician’s negligence reduces that chance, regardless of whether the patient’s chance of survival was above or below 50 percent at the time of the physician’s negligence.”
In approving the loss of chance doctrine in Minnesota, the Minnesota Supreme Court stated, “we agree with those courts that treat the reduction of a patient’s chance of recovery or survival as a distinct injury. It should be beyond dispute that a patient regards a chance to survive or achieve a more favorable medical outcome as something of value … We agree with the Supreme Judicial Court of Massachusetts: “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” … Accordingly, we conclude that a physician harms a patient by negligently depriving her of a chance of recovery or survival and should be liable for the value of that lost chance … the reliability of the evidence that victims of medical malpractice are able to marshal when a physician’s negligence reduces a patient’s chance of recovery or survival has dramatically improved in recent years—now making it possible to prove causation in a loss of chance case … we are recognizing that an injury that has always existed is now capable of being proven to a reasonable degree of certainty.”
The Measure Of Damages In Minnesota Loss Of Chance Cases
The Minnesota Supreme Court stated, “The first step in a loss of chance case is to measure the chance lost. Put differently, “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'” … The second step is to value the lost chance … under our view of the loss of chance doctrine, the total amount of damages recoverable is equal to the percentage chance of survival or cure lost, multiplied by the total amount of damages allowable for the death or injury.”
In the case before it, the Minnesota Supreme Court stated that because the child is still alive, “the appropriate baseline to determine loss of chance damages for her injury is not the total amount of damages allowable for death. Rather, the appropriate measure of damages is the value of the reduction of the plaintiff’s life expectancy from her pre-negligence life expectancy … In other words, assuming the fact-finder concludes that the appellants’ negligence reduced [the child’s] life expectancy, the fact-finder must determine the amount of damages necessary to compensate [the child] for that reduction in life expectancy.”
The Minnesota Supreme Court concluded, “Minnesota law permits a patient to recover damages when a physician’s negligence diminishes or destroys a patient’s chance of recovery or survival.”
Source Jocelyn Dickhoff by her parents and natural guardians Joseph Dickhoff and Kayla Dickhoff, Respondents vs. Rachel Green, M.D., et al., Appellants. Case No. A11-0402.
The Status Of The Loss Of Chance Doctrine In The United States
The highest courts of Arizona, the District of Columbia, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Missouri, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, Wisconsin, and Wyoming have endorsed some form of the loss of chance doctrine over the past three decades. By contrast, the highest courts of Florida, Idaho, Maryland, Mississippi, New Hampshire, Tennessee, Texas, South Carolina, and Vermont have rejected the loss of chance doctrine.
If you or someone you know may have been injured as a result of medical malpractice in Minnesota or in another U.S. state that resulted in a loss of chance, you should promptly consult with a Minnesota medical malpractice attorney or a medical malpractice attorney in your U.S. state who may be willing to assist you with your medical malpractice claim.
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