The loss of chance doctrine typically arises in medical malpractice cases where a plaintiff seeks to recover damages against an allegedly negligent doctor for reducing a patient’s chance of survival by some percentage.
A medical malpractice lawsuit filed by the parents of Jocelyn Dickhoff alleges that a pediatrician failed to diagnose a potentially terminal cancer in 2006. Jocelyn’s parents sued Dr. Rachel Tollefsrud and Family Practice Medical Center alleging that the cancer would have been curable under reasonable care and a timely diagnosis.
The baby’s mother contends that she noticed a suspicious lump on Jocelyn’s buttocks which she addressed to the pediatrician during the infant’s two-week well baby check-up, as well as during multiple appointments thereafter in Jocelyn’s first year of life. Jocelyn’s mom said Dr. Tollefsrud repeatedly told her to “keep and eye on it.” The suit alleges that it wasn’t until the child was a year old that the doctor noted the lump in Jocelyn’s medical chart. At that time, the one-year old was examined by a pediatric oncologist and diagnosed with stage IV alveolar rhabdomyosarcoma, a rare form of childhood cancer of the muscle that has now spread to other parts of Jocelyn’s body.
Jocelyn's life has been a cycle of radiation, chemotherapy and surgeries. The trial was repeatedly delayed because of the recurring cancer. In June 2010, the case was dismissed reasoning that the couple was making a “reduced-chance” medical malpractice claim, which was not recognized in Minnesota. The court also denied damages due to recurrence of the cancer, holding that the parents' expert's affidavit did not establish that it was more probable than not that the recurrence was the result of negligence.
Last year, the Minnesota Court of Appeals unanimously reversed the decision last year, determining that Jocelyn, now 7-years-old, would have a better survival rate had the cancer been diagnosed sooner. Previously, the state allowed lawsuits to move forward only in cases of “improbable survival,” or when the chances of survival slipped below the threshold of 50 percent. The appeal focused on an affidavit by a pediatric hematology and oncology physician, who testified that the year-long delay in diagnosing her cancer reduced Jocelyn’s chances of survival from 60 to 40 percent; Jocelyn currently has a 5 percent chance of survival. The court concluded that because the child's chance of survival is now "improbable," a jury could reach the conclusion that the delayed diagnosis significantly affected the child's chances of survival had she been treated much sooner.
Justice Paul Anderson rejected the “50 percent” ruling. He said “allowing some patients to sue if their chances dropped from 51 percent to 49 percent, but prohibiting others from suing if their chances dropped from 49 to 0 percent is unreasonable.” The defense attorney says the ruling is an example of judicial overreach that could have a devastating impact on doctors through increased medical malpractice claims. In our opinion, the potential impact to the doctor is dwarfed by the impact to this unfortunate patient and her family. When a doctor fails to diagnosis in a timely manner, the window of opportunity to provide effective treatment is closed. The patient's condition may worsen; in the most serious of situations, the patient may die.
Medical professionals must be held accountable for delays in diagnosis that limit treatment options and negligent misdiagnoses that lead to incorrect treatment, lack of treatment, or death. If errors go unpunished, they are far more likely to be repeated. Maybe the cancer is terminal, but negligence has, potentially, shortened this young child’s life. Had there not been a misdiagnosis would appropriate treatment change the outcome for this young child? Would she be cancer-free today? It is hard enough to hear your child has been diagnosed with cancer and harder knowing it is terminal. Living with the knowledge that someone misdiagnosed her condition makes an already difficult situation even more so.
I congratulate the Minnesota Court of Appeals for reversing the decision and putting the decision back in the hands of those who hear the facts, circumstances, and evidence of each case, and give careful consideration to what they heard, back in the hands of the jury. The only way to reduce medical malpractice is to reduce negligence and carelessness.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.