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Minnesota Supreme Court Archives - Carey Danis & Lowe

“Loss of Chance” Doctrine now available to Minnesota Medical Malpractice Plaintiffs

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It is devastating for parents to learn that their child is suffering from a serious illness and that the likelihood of survival is minimal.  It is even more devastating for parents to learn that if their pediatrician had diagnosed the illness earlier, their child’s chances of survival would have greatly increased.  This is the situation that faced Kayla and Joseph Dickhoff, parents of Jocelyn Dickhoff. A year after Kayla brought a lump on Jocelyn to the attention of her pediatrician, Jocelyn was diagnosed with alveolar rhabdomyosarcoma (ARS), a rare and aggressive childhood cancer.  According to experts, had the cancer been diagnosed sooner, then Jocelyn’s life would have likely been greatly extended.  Instead, Jocelyn passed away at the age of 7.

When Jocelyn Dickhoff was 16 days old, her mother noticed a lump on her buttock.  The next day Dr. Rachel Green, now known as Dr. Tollefsrud, examined Jocelyn at her well baby checkup.  During the checkup Jocelyn’s mother asked Dr. Tollefsrud about the lump.  Dr. Tollefsrud thought that the lump was likely a cyst.  Even though Dr. Tollefsrud examined Jocelyn multiple times over the next several months it was not until Jocelyn’s examination at age 1 that Tollefsrud became concerned enough to refer Jocelyn to another pedestrian.  Eventually Jocelyn was examined by a pediatric oncologist who diagnosed Jocelyn with ARS.  By that time the cancer had metastisized.

The Dickhoffs filed a medical malpractice claim against Tollefsrud, claiming that because of Tollefsrud’s failure to diagnose Jocelyn’s cancer earlier or failure to refer her to another pediatrician for diagnosis, Jocelyn’s life expectancy was reduced.  To support their allegation and as required by Minnesota law, the Dickhoffs offered expert testimony from other physicians. At the time of the Dickhoff’s lawsuit, based on the decision in Fabio v. Bellomo, 504 N.W.2d 758 (Minn. 1993),  Minnesota was considered as one of a handful of jurisdictions that did not recognize the theory of “loss of chance of life” as a basis for a medical malpractice negligence claim.  Thus, Tollefsrud filed a motion to dismiss.  The lower court ruled in favor of Tollefsrud.  The Dickhoffs appealed.  The court of appeals reversed the trial court’s decision, ruling in favor of the Dickhoffs. Tollefsrud appealed to the Minnesota Supreme Court.

In Jocelyn Dickhoff  v. Rachel Green, M.D., No. A11-0402 (Minn. May 31, 2013), the central issue on appeal was whether the Dickhoffs’ case was precluded from moving forward due to Minnesota not recognizing the “loss of chance of life” theory. Since Fabio was considered the seminal case that conclusively rejected the “loss of chance of life” doctrine in Minnesota, the Supreme Court of Minnesota’s decision was largely based on an analysis of Fabio.  Upon review of Fabio the Minnesota Supreme Court determined that Fabio did not conclusively reject the loss of chance of life doctrine, but rejected it as applied to the specific facts of Fabio.  Therefore, the question before the court was whether a loss of chance of life claim should be recognized in Jocelyn’s case.  The Minnesota Supreme Court concluded that it should be.

The legacy of Jocelyn Dickhoff is that in Minnesota physicians whose negligence shortens the life expectancies of their patients can now be held legally accountable.  If a physician’s negligence has negatively impacted your chance of recovering from an illness or injury, you may be able to recover monetary damages from that physician in a medical malpractice lawsuit.  Contact an experienced medical malpractice attorney immediately.  Since the Dickhoff case has essentially changed the rules for recovering damages, even if an attorney previously declined to accept your case, a medical malpractice attorney will now review anew the facts of your case and discuss your options for pursuing a claim.

 

About the Author:

This article was contributed on behalf of the Abelson Law firm, personal injury attorneys serving the Washington, D.C.  area. For more information visit www.abelsonlaw.com