Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013)
On May 31, 2013, the Supreme Court of Minnesota has delivered an immensely important decision: it recognized as actionable a patient’s increased risk of dying resulting from her doctor’s negligent failure to secure timely diagnosis and treatment of cancer.
The defendant doctor was a family practice physician, and the patient was a baby. The baby had a lump on her buttock. According to the plaintiffs—the baby’s parents—the doctor saw, but did nothing about, the lump at the baby’s 2-, 4-, 6-, and 9-month well-baby checks. The doctor first documented the lump’s presence on the baby’s medical chart and referred her to a specialist only at the 1–year well-baby check. Shortly thereafter, the baby was diagnosed with alveolar rhabdomyosarcoma (ARS)—a rare and aggressive childhood cancer. Following this diagnosis, she underwent a tumor-removal surgery, chemotherapy and radiotherapy, but remained dangerously ill.
The parents’ malpractice allegations against the doctor were supported by two medical experts: a family physician and a pediatric hematologist/oncologist. The hematologist/oncologist estimated that the baby’s early referral for treatment by specialists (similar to the treatment she received belatedly) would have given her, at a minimum, a 60% chance to survive the illness, and that the defendant’s failure to make that referral—separately identified as malpractice by the family physician—had reduced this chance to 40%.
The Minnesota Supreme Court ruled that the reduction in the patient’s chances to survive her illness constitutes actionable damage in and of itself. More generally, the Court decided that a wronged patient can successfully sue her doctor for an increased risk of not recovering from the underlying illness and for a decreased life expectancy as a standalone damage. There is only one limitation to this new cause of action: the patient’s increased risk and decreased life expectancy must be substantial, rather than de minimis.
On the way to this conclusion, the Court reasoned that the “lost chance” doctrine is necessary for properly compensating tort victims and deterring potential wrongdoers. The Court also noticed that medical science makes the doctrine workable by providing statistical information that courts can depend upon. Finally, the Court overruled Fabio v. Bellomo, 504 N.W.2d 758, 762–63 (Minn. 1993)—a decision that refused to recognize an aggrieved patient’s future-illness prospect as an actionable standalone damage.
The Court has established the lost-chance doctrine for Minnesota in its broadest format. Thus far, courts recognizing the doctrine have limited its applicability to cases involving an already-injured patient, proven malpractice, and uncertain causation. Under this set of facts, the wronged patient is often unable to causally connect her injury to the doctor’s malpractice. The traditional preponderance-of-the-evidence requirement consequently dooms the patient’s suit (unless the patient can prove that she had a more than 50% chance of being cured by the proper treatment). To secure fairness to the patient and avoid the erosion of the doctors’ incentive to deliver proper treatment, courts have allowed the wronged patient to recover from the negligent doctor probabilistic compensation. The amount of that compensation equals the chance of complete or partial cure that the doctor’s malpractice denied the patient multiplied by the patient’s total damage.
The Court could easily categorize Dickhoff v. Green as a past-injury case. According to the plaintiffs, their daughter’s cancer became more severe and more acute than it would have been under the proper-treatment scenario. The monetary value of that aggravated affliction therefore must include the 20% (if not greater) reduction of her chances to survive. By taking this path, the Court could have bypassed the need to repeal Fabio. Fabio was a future-injury case: there, the Court proceeded on the assumption that the plaintiff seeks compensation for her chances of developing breast cancer in the future after she was cured and became cancer-free.
Based on the work I coauthor with Ariel Porat, I believe that the Court’s broad formulation of the lost chance doctrine was right. Tort victims should be entitled to recover compensation for their increased chances of dying or becoming incurably ill. To give just a few justifications for that claim:
(1) As acknowledged by the Court in the Dickhoff case, any substantial increase in a person’s chances of dying or becoming dangerously ill erodes her well-being.
(2) Oftentimes, the aggrieved person needs money to pay for medical treatments that slow down the deterioration of her condition and prolong her life.
3) By the time that the person’s prospect of death (or injury) materializes, the wrongdoer may become judgment-proof or immune against suit under the statute of repose.
Finally, anyone who reads the Court’s decision will be amazed by the bravery, perseverance and spirit of the patient, Jocelyn Dickhoff, who will soon be seven years old. Jocelyn is a hero and I pray for her recovery.