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).