Supreme Court Archives - Carey Danis & Lowe

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

By | Uncategorized

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

Effects of the Mensing Ruling on Yaz & Yasmin Lawsuits

By | Pharmaceutical litigation, Uncategorized, Yaz/Yasmin

Published June 4, 2012 on LawsuitInformation.org

Yaz Lawsuit and The Mensing Ruling

The Mensing Ruling refers to a ruling by the Supreme Court in the case of Pliva, Inc., et al. v. Mensing which essentially protected generic manufacturers from lawsuits for failure to warn about any side effects of their products beyond the warnings contained on the warning label of the name Brand product of which they are a “copy”.

The ruling does not effect the Yaz Lawsuit or the Yazmin Lawsuit however, it may effect women who took Generics of Yaz and Yazmin even if those generics were sold under brand names.

Yaz Lawsuit not covered under Mensing

Although the Mensing Ruling does not effect the maker of the Brand Name Drugs Yaz and Yasmin from Facing a Yaz Lawsuit or a Yasmin Lawsuit, the Mensing ruling may effect women who took “Branded Generics like Occela, Safyral, Gianvi, Loryna and others. Although all of the drugs were sold under brand names, they were considered generics. This selling of Generics under a brand name would seem to be a contradiction.

The term “Brand and Generic” are terms used to distinguish a “Brand Name” product from a “Generic” copy of that same brand. This contradiction would not be relevant to the Yaz Lawsuit and other drugs listed by the FDA containing Drospirenone if it were not for a ruling commonly known as the “Mensing Ruling” in which the supreme court ruled that the manufacturer of a generic drug could not be held liable for side effects from that drug so long as the generic manufacturer placed the same warning on their generic version of the drug as was placed on the brand name version of the drug.

This ruling does not effect the Yaz Lawsuit or the Yasmin Lawsuit however, the Mensing ruling may effect those who took one of the “Branded Generics” as those may be protected under the Mensing ruling despite the fact that they were sold under Brand Names.

Yaz Lawsuit and Senate Bill

Although the law may never pass, Legislation was presented before the Senate, The Senate bill, S. 2295m titled the “Patient Safety and Generic Labeling Improvement Act” which would allow generic drug manufacturers to put additional warning labels on their products beyond those of the Name Brand of which they are a copy. The Mensing ruling was largely based on the fact that generic manufacturers are not allowed to place warnings on their products beyond or different than those placed on the Brand Name of which they were a copy.

The high court’s reasoning in the Mensing case was largely based on the logic that if a generic manufacturer was not allowed to place a warning on their products that went further than or differed from the Brand Names warnings then they could not be held liable for failing to warn the public of a potential risk associated with their product that was not covered in the warning label of the product.

The Senate Bill was introduced in April 2012 and has to go through a long process before becoming law if it ever does. Until then, individuals that take Generic drugs may have no recourse if they suffer severe side effects from a generic drug that were not covered on the warning label. As previously stated, Yaz and Yasmin, the drugs that are subject to the Yaz Lawsuit and Yasmin Lawsuit, were both sold as Brand Name Drugs therefore, the Mensing ruling nor the Senate Bill effect the Yaz Lawsuit or Yasmin Lawsuit in anyway what so ever.

There may be arguments regarding whether some of the other “Branded Generics” should be afforded the protection of the Mensing ruling considering the fact that these drugs were in fact “Branded” with names like Ocella. It is reasonable to assume that a person taking a drug that has a brand name would believe they are taking a Brand Name drug vs a generic drug. Whether or not this consumer confusion created by generics being sold under brand names will come into play in the over all birth control pill lawsuit is yet to be seen regardless, at least those women who took Yaz and Yasmin will still be able to file a Yaz Lawsuit or a Yazmin Lawsuit without any concern of their suit being tossed out due to the Mensing ruling.