Decrease in the patient’s chances to survive held actionable as a standalone damage in Minnesota

By Alex Stein

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. Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013)

This case involved a family physician (the defendant) and her baby patient (the plaintiff). The baby had a lump on her buttock, which the defendant allegedly considered a non-issue for nearly a year. At the 1–year well-baby check, the defendant referred the baby to a specialist, who diagnosed her with alveolar rhabdomyosarcoma (ARS)—a rare and aggressive childhood cancer. The baby subsequently underwent a tumor-removal surgery, chemotherapy and radiotherapy, but remained dangerously ill.

The plaintiff’s experts opined that delaying her referral to a specialist was a medical error. Timely referral would have given the plaintiff, at a minimum, a 60% chance to survive the illness. Due to the defendant’s negligence, this chance had gone down to 40%. The plaintiff’s prima facie evidence thus showed a 20% reduction in her chances to stay alive.

The Minnesota Supreme Court ruled that this reduction 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 the underlying illness’s recurrence and 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.

On the way to this conclusion, the Court reasoned that the “lost chance” doctrine is necessary for properly compensating tort victims and deterring malpractitioners. The Court also noticed that medical science makes the doctrine workable by providing statistical information that courts can depend upon.

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 (due to the patient’s preexisting condition). Under this set of facts, the wronged patient is often unable to causally connect her injury to the doctor’s malpractice (under the “preponderance” standard). To secure fairness to the patient and avoid the erosion of doctors’ incentive to deliver proper treatment, courts have allowed the wronged patient to recover probabilistic compensation from the negligent doctor. The amount of that compensation equals the chance of cure that the doctor’s malpractice denied the patient multiplied by the patient’s total damage. For discussion and criticism of these decisions, click here.

In my opinion, the Court made a good decision. Medical malpractice victims should be entitled to recover compensation for a seriously increased risk of dying.

Here is why:

  1. As acknowledged by the Court, any substantial increase in a patient’s chances of dying erodes her well-being (both emotionally and financially).
  2. Oftentimes, the aggrieved patient needs money to pay for medical treatments that slow down the deterioration of her condition and prolong her life.
  3. Asking the patient and her family to wait and see whether she dies or not is unfair to the patient and detrimental to deterrence. By the time that the patient’s prospect of dying materializes, the negligent physician may become judgment-proof or immune against suit under the statute of repose.

The new malpractice liability has a potential downside as well: it may shift the medical default in cancer treatments by making surgery, chemotherapy and other aggressive treatments the physicians’ rule of choice. This shift isn’t necessarily a good thing as some patients are better off with a non-aggressive cancer management (I thank Bill Sage for alerting me to this problem). For dynamics that lead to overtreatment, see Jim Gibson’s excellent piece, Doctrinal Feedback and (Un)Reasonable Care, 94 Va. L. Rev. 1641 (2008).

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.

2 thoughts on “Decrease in the patient’s chances to survive held actionable as a standalone damage in Minnesota

    • Thanks!
      One more thing —
      Under Dickhoff’s set of facts — a general pediatrician or family doctor who negligently fails to refer his patient to a specialist for diagnosing a dangerously looking condition (e.g., a lump on the baby’s body) — the wronged patient can also sue the doctor for violating her right to informed consent. Generalists must inform their patients about potentially useful referrals. Importantly, if the patient gets misinformed in this way when her chances to survive are above 50%, suing the doctor for informed-consent violation might allow the patient to recover compensation for her entire damage (rather than 20% as might happen in Dickhoff). Such suits, however, cannot properly be filed in the states in which violations of informed consent are actionable only as assault or battery (Pennsylvania, for example). Minnesota is not one of those states: there, patients can sue doctors for negligent nondisclosure as well. A.S.

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