“Loss Of Chance” Doctrine Embraced By Minnesota’s Highest Court

In a recent Minnesota court decision the focus was on the “loss of chance” doctrine.  This doctrine allows patients to seek recovery when a medical malpractice action pertains to a doctor’s negligence resulting in the reduction of a patient’s odds of getting better.  The ruling, which came down on May 31st, makes Minnesota the 23rd state to find that their state law allows this.

In this case, Jocelyn Dickhoff’s mother took her to the family doctor when a suspicious lump was found on the girl’s buttock.  Jocelyn was 2 weeks old at the time.  Despite the parents telling the doctor several times, the lump was never recorded in her medical records until she was 1 year old.  This lump turned into a rare and aggressive cancer, which was eventually diagnosed by another doctor.  The parents sued their pediatrician due to the failure to record the lump in the medical records when they first became aware of it.

It was alleged that because the lump was never recorded in medical records Jocelyn’s cancer was not diagnosed until it was so advanced that it was no longer curable.  Now Jocelyn is 7 years old and doctors have testified that the cancer is likely fatal.

The trial court judge found in favor of the pediatrician, granting summary judgment in 2010 because the judge determined that Minnesota law did not provide relief for “loss of chance.”  The appeals court overturned the trial court’s ruling, finding that the parents could claim damages under traditional medical malpractice law.  Minnesota’s highest court upheld this ruling, however they did find that the state’s law permits recovery for “loss of chance” and that the injury standard was met in this case.

“Loss of chance” is a controversial doctrine.  Nine states have rejected this doctrine due to concerns that it will lower the traditional standard that is used to determine if the doctor worsened the patient’s already serious condition.  Under the traditional standard, a patient can only obtain recovery if prior to the doctor’ alleged negligence the patient had a greater than 50 percent chance of survival.  However, “loss of chance” exposes a doctor to liability in cases where the patient is already seriously ill.  There is a concern that acceptance of this doctrine will lead to an increase in medical liability.  However, others believe that “loss of chance” will allow patients to seek damages if it can be shown that the doctor lessened the patient’s chances of survival.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.