Minn. high court creates 'loss of chance' doctrine

A Minnesota Supreme Court decision in the case of a little girl with cancer says state law allows a patient to seek damages if a doctor's negligence causes that patient's chances of recovery or survival to be reduced -- a significant shift in the way Minnesota has looked at malpractice claims in the past.

But dissenting judges warned that the decision overrules longstanding precedent and will unfairly hold doctors liable for harm that may never materialize.

Friday's 3-2 ruling comes in the case of a couple who claims their daughter's rare form of muscle cancer would have been curable if it had been diagnosed earlier. Kayla and Joseph Dickhoff sued Dr. Rachel Tolefsrud and the Family practice Medical Center in Willmar in 2009, claiming their negligence caused injuries that would lead to future expenses and pain.

The doctor and clinic have denied they were negligent. Their attorney was not in the office and did not return messages left Friday by The Associated Press.

The majority opinion, written by Justice Paul Anderson, said the "loss of chance" doctrine recognizes that a patient suffers real injury when a doctor's negligence reduces chances of recovery or survival and a doctor "should be liable for the value of that lost chance."

But in his dissent, Justice Christopher Dietzen wrote that a cardinal principle of tort law says a defendant should be responsible only for injuries that are "caused by" the defendant's negligence. He said in "loss of chance" cases, the harm may never materialize and if it does occur, it might be due to a disease's progression and not due to negligence.

Dietzen wrote that "the majority has concocted a legal fiction in order to obscure the very real causation problem in this case. The loss of chance is not an injury that the law should recognize as compensable." Chief Justice Lorie Skjerven Gildea joined in the dissent.

The Dickhoffs claim they told Tollefsrud about a suspicious bump on their daughter, Jocelyn, shortly after her birth. Kayla Dickhoff says Tollefsrud told her to keep an eye on it and not to worry because it may be just a cyst. The two sides dispute how often the bump was discussed during Joceyln's first year. Kayla Dickhoff took her daughter to other doctors, and Joceyln was diagnosed with an advanced form of muscle cancer that had metastasized. She underwent treatment, but her cancer recurred in 2010.

Jocelyn will be 7 years old in June. The family's attorney, Kay Nord Hunt, said she is currently undergoing chemotherapy, and has been experiencing headaches.

Nord Hunt called the ruling a "wholesale shift in the law." She said that until now, Minnesota was one of 10 states that did not have a "loss of chance" doctrine. Now, she said Minnesota is in line with many other states.

Mark Hallberg, an attorney for the Minnesota Association for Justice, which weighed in on the case, said he was pleased.

"It's a more rational way of looking at the damages that occur when there is a delay in diagnosis," Hallberg said. He said Anderson conducted a thoughtful analysis of other Supreme Court cases that touched on this issue, and took a fresh look at what the law should be in Minnesota.

But Mark Whitmore, an attorney for Minnesota Hospital Association and Minnesota Medical Association, said the ruling is problematic, and goes against the basic premise that a defendant should only be liable for damages caused.

"Defendants, hospitals, and physicians in general, are now subject to liability, even if they haven't caused the death," he said.

"Forever, the law has been, you can receive compensation or you can receive an award if somebody causes you harm, and they do that negligently," he said. "The problem with this case is, if somebody is negligent, but it doesn't cause harm that is more likely than not to occur, under the majority it is still possible they would receive compensation -- and that's neither right nor fair."