Dickhoff ex rel. Dickhoff v. Green
836 N.W.2d 321, 2013 WL 2363550, 2013 Minn. LEXIS 309 (2013)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
In a medical malpractice action, a patient may recover damages for the loss of a chance of recovery or survival when a physician's negligence diminishes that chance. The compensable injury is the lost chance itself, and damages are calculated proportionally based on the percentage of the chance lost multiplied by the total damages that would be recoverable for the ultimate harm.
Facts:
- Jocelyn Dickhoff was born on June 12, 2006.
- Shortly after her birth, Jocelyn's mother, Kayla Dickhoff, noticed a small lump on her left buttock.
- At Jocelyn's 2-week well-baby check, Kayla Dickhoff pointed out the pea-sized lump to their family physician, Dr. Rachel Tollefsrud.
- Kayla Dickhoff alleged that she continued to raise concerns about the growing lump at Jocelyn's 2-, 4-, 6-, and 9-month check-ups.
- By nine months, the lump had allegedly grown to three centimeters in diameter.
- On June 14, 2007, at Jocelyn's 1-year check-up, Dr. Tollefsrud first documented the lump, now approximately 4 cm, and referred Jocelyn to specialists.
- Jocelyn was subsequently diagnosed with stage III/IV alveolar rhabdomyosarcoma (ARS), a rare and aggressive childhood cancer.
- The Dickhoffs' expert witness opined that with a timely diagnosis, Jocelyn's cancer would have been curable and her chance of survival would have been much higher than 60%, but the delay in diagnosis reduced her chance of survival to 40%.
Procedural Posture:
- Joseph and Kayla Dickhoff sued Dr. Tollefsrud and the Family Practice Medical Center for medical malpractice in Kandiyohi County District Court (trial court).
- The defendants filed a motion to dismiss, which the district court treated as a motion for summary judgment.
- The district court granted summary judgment in favor of the defendants, concluding that Minnesota law does not recognize 'loss of chance' claims and that the plaintiffs failed to prove causation.
- The Dickhoffs (as appellants) appealed the summary judgment decision to the Minnesota Court of Appeals (intermediate appellate court).
- The Court of Appeals reversed the district court's decision.
- Dr. Tollefsrud and the Family Practice Medical Center (as appellants) petitioned the Minnesota Supreme Court (highest court) for further review, which was granted.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Minnesota law permit a patient to recover damages in a medical malpractice action for the 'loss of a chance' of recovery or survival when a physician's negligence reduces that chance?
Opinions:
Majority - Justice Anderson
Yes. Minnesota law permits a patient to recover damages for the loss of a chance of recovery or survival as a distinct, compensable injury in a medical malpractice action. The court formally adopts the 'loss of chance' doctrine, reasoning that the traditional 'all or nothing' rule for causation is unjust as it bars recovery for patients whose pre-negligence survival odds were below 50% and fails to deter negligence in such cases. The court re-evaluates its prior holding in Fabio v. Bellomo, concluding its rejection of the doctrine was dicta and not controlling precedent. The injury is defined not as the ultimate harm (death), but as the lost chance itself, which the court views as a real and valuable interest destroyed by negligence. For calculating damages, the court adopts the 'proportional-recovery' approach, where the total damages for the ultimate harm are multiplied by the percentage of chance that was negligently lost. Because Jocelyn is still alive, the appropriate measure of damages is the value of the reduction in her life expectancy.
Dissenting - Justice Dietzen
No. Minnesota law should not permit recovery for loss of chance, as it undermines the fundamental tort principle that a defendant is only liable for injuries directly caused by their negligence. The dissent argues the majority is improperly overruling clear precedent from Fabio v. Bellomo and Leubner v. Sterner, which explicitly rejected the loss of chance doctrine. Furthermore, the court is acting sua sponte, as the plaintiffs themselves disavowed this theory. The dissent contends that defining the 'lost chance' as the injury itself is a 'legal fiction' created to circumvent the insurmountable causation problem; the cancer, not the doctor, is the more probable cause of the ultimate harm. This new doctrine invites speculation in calculating damages and risks overcompensating plaintiffs who may ultimately survive, making it a matter of public policy better suited for the Legislature.
Analysis:
This case marks a significant expansion of medical malpractice liability in Minnesota by formally recognizing the 'loss of chance' doctrine. In doing so, the Minnesota Supreme Court joins a growing number of jurisdictions that treat the lost opportunity for a better outcome as a legally compensable injury. This decision effectively lowers the causation hurdle for plaintiffs, particularly in delayed-diagnosis cases where the patient's initial prognosis was already poor (i.e., less than a 50% chance of survival). The ruling will likely lead to more claims being filed in such circumstances and will require lower courts to develop methods for instructing juries on the valuation of a reduced life expectancy under the newly adopted proportional-recovery framework.
