Minnesota Adopts Loss of a Chance Doctrine: Medical Malpractice Trial Ordered to Proceed

The parents of Jocelyn Dickhoff, who turns seven on June 12, brought a case against her physicians for failing to timely diagnose her cancer or refer her to another doctor for diagnosis and treatment. The trial court dismissed her case. Today, the Minnesota Supreme Court ruled on appeal that the case could proceed to trial on the claims that Dr. Rachel Tollefsrud and Family Practice Center of Willmar, P.A. were negligent in failing to make a timely diagnosis when Jocelyn’s tumor was first brought to Dr. Tollefsrud’s attention by Kayla Dickhoff, the child’s mother.

In making the ruling the Court’s opinion stated:

“It should be beyond dispute that a patient regards a chance to survive or achieve a more favorable medical outcome as something of value.”

“This decision allows Jocelyn’s case to go back to be tried. But this decision is much bigger than just Jocelyn’s case,” said Kay Nord Hunt, attorney with Lommen, Abdo, Cole, King & Stageberg, P.A. “Minnesota today joins the growing number of jurisdictions (22) that have adopted some form of loss of a chance. Only nine have rejected it.”

In reaching this conclusion, the Court noted:
“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 in 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. Indeed, in light of modern medical science, allowing a patient to recover damages for a lost chance of recovery or survival is no more abstract, speculative or hypothetical than allowing the jury to determine damages for the loss of a victim’s earning capacity throughout her lifetime – an inquiry that courts and juries routinely undertake and that our court has long endorsed.”

“The appropriate measure of damages is the value of the reduction of Jocelyn’s life expectancy from her pre-negligence life expectancy. In other words, assuming the fact-finder concludes the doctor’s negligence reduced Jocelyn’s life expectancy, the fact-finder must determine the amount of damages necessary to compensate Jocelyn for that reduction in life expectancy. While we recognize that this task is not easy, it is the type of duty that courts routinely delegate to juries in personal injury cases.”

To access the decision: http://macsnc.courts.state.mn.us/ctrack/document.do?doView=&document=628bf7656bb774c5343b1e5036874c964ff621fe1b231c3f43ac9764a417947c

Background about the Case

Kayla Dickhoff first noticed a bump on Jocelyn’s buttocks on June 28, 2006, when Jocelyn was less than three weeks old. The next day during a well-baby checkup she showed Dr. Tollefsrud the bump, which was approximately one centimeter. Dr. Tollefsrud told Mrs. Dickhoff that she would keep an eye on it and not to worry. This pattern continued until Jocelyn’s one-year checkup despite her mother’s repeated questioning of the physician as the bump continued to slowly grow and change in texture.

Upon referral to another physician following the one-year checkup, Jocelyn’s cancer was diagnosed Stage IV alveolar rhabdomyosarcoma (RMS), a cancer of the connective tissues. Jocelyn’s MRI showed two masses, the largest measuring more than 5 centimeters and evidence of metastasis.

The best chance for successful treatment for RMS at the initial stages would be surgery to remove the tumor. However, because the cancer had spread and metastasized by the time it was diagnosed by a pediatric oncologist at the University of Minnesota, surgery was no longer an option. Since that diagnosis, Jocelyn has undergone repeated chemotherapy and radiation treatments. Currently, Jocelyn is undergoing chemotherapy, which is expected to continue. She has an MRI scheduled for June 17 because of severe headaches.

Read the Star Tribune article about the decision.