Recovery for Loss of Chance of Recovery or Survival in Failure to Diagnose Cancer Suit

Shortly after her daughter was born, a woman noticed a lump on the infant’s buttock. The mother allegedly discussed the lump with her daughter’s physician at various checkups.  The physician documented the lump in the daughter’s chart at her one-year appointment and referred her to a pediatrician, who referred her to a pediatric surgeon because she was concerned that the lump could be a malignant tumor. Shortly thereafter a pediatric oncologist diagnosed the daughter with alveolar rhabdomyosarcoma (ARS), a rare and aggressive childhood cancer. The pediatric oncologist concluded that the daughter’s cancer was at stage IV and had metastasized.


Following this diagnosis, the daughter began an intense regimen of chemotherapy, followed by surgery and a type of radiation therapy known as “brachytherapy,” which involves the surgical insertion of rods that contain radioactive beads. The physicians who performed the surgery removing the tumor agreed that the daughter had ARS, but diagnosed the cancer at stage III.


Shortly before her second birthday, her parents sued the daughter’s physician and the physician’s practice group on their daughter’s behalf. They alleged that the defendants negligently failed to timely diagnose their daughter's cancer or refer her to a specialist for diagnosis and treatment. They alleged that her cancer would have been curable if it had been timely diagnosed, but now her cancer most likely is fatal. They claimed that the defendants' negligence caused their daughter to suffer permanent and/or fatal bodily injury. They claimed that their daughter had incurred and will incur in the future, medical and other related expenses, pain, disability and disfigurement and the appellants' negligence caused their daughter to suffer loss of enjoyment of life and diminution of her earning capacity.


In support of their medical malpractice action, the plaintiffs presented the expert opinion of a pediatric hematology and oncology physician on causation. The expert concluded that the physician's failure to diagnose the daughter's cancer resulted in a delay in treatment that made it probable that she will not survive her cancer.


The district court ruled that the plaintiffs could not recover any general or special damages for past medical expenses. The plaintiffs conceded that the daughter would have received essentially the same treatments—chemotherapy, surgery, and radiation—even in the absence of the defendants' negligence. Following the ruling, the plaintiffs continued to seek damages for future medical expenses and the additional pain and suffering that the daughter will experience because of those future treatments.


The district court granted summary judgment in favor of the defendants. The court concluded that the claim for reduced life expectancy and increased risk of recurrence was essentially a claim for loss of chance of life that was foreclosed by Minnesota's prior case law pertaining to the “loss of chance” doctrine. The district court also dismissed the claim for medical expenses based on the cancer's recurrence, concluding that the plaintiffs failed to present sufficient expert testimony showing that it was more probable than not that the defendants’ alleged negligence was the cause of the damages, as opposed to the chance of recurrence already present absent the alleged negligence. The Minnesota Court of Appeals reversed.


The Supreme Court of Minnesota affirmed holding that Minnesota law permits recovery for loss of chance of recovery or survival in a medical malpractice action. Thus, the court held that the district court erred when it dismissed the medical malpractice action on the ground that the plaintiffs' claim was prohibited under Minnesota law. 


The court explained that in a loss of chance case, the plaintiff must sustain the burden of proving that the defendant negligently deprived her of a chance of a better outcome. Assuming that the plaintiff satisfies that burden, then the defendant should be liable for the value of the chance he has negligently destroyed. The “loss of chance” doctrine recognizes that a patient values her chances of recovery or survival and she suffers a real injury when a physician's negligence reduces that chance, regardless of whether the patient's chance of survival was above or below 50 percent at the time of the physician's negligence.


The court went on to explain how to measure loss of chance damages. Specifically, loss of chance damages are measured as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome. Accordingly, the total amount of damages recoverable is equal to the percentage chance of survival or cure lost, multiplied by the total amount of damages allowable for the death or injury. The appropriate measure of damages is the value of the reduction of the plaintiff's life expectancy from her pre-negligence life expectancy. Applied to the case at bar, based on expert medical opinion, the relevant medical standard to measure loss of chance was the 5-year survival rate for ARS.


The court also held that the district court erred in ruling that plaintiffs' expert testimony failed as a matter of law to establish a prima facie case of causation. To establish a prima facie case of medical malpractice, a plaintiff must prove, among other things, that it is more probable than not that his or her injury was a result of the defendant health care provider's negligence. The court concluded that the plaintiffs had created a genuine issue of material fact on the issue of causation, and therefore the district court erred by granting summary judgment in favor of the defendants. Specifically, the pediatric oncologist’s affidavits were sufficient to create a genuine issue of material fact on causation. The pediatric oncologist asserted that the physician's failure to timely diagnose the daughter's cancer caused a substantial increase in the likelihood that her cancer would recur and decreased her chances of survival by at least 20 percent, and he based his conclusion on an analysis of the particular characteristics of her cancer and its progression. In other words, the plaintiffs produced evidence establishing that the daughter's prospects for achieving a more favorable outcome, as measured in terms of her likelihood of surviving for a number of years under the relevant medical standard—the 5-year survival rate for ARS—were reduced by the physician's negligence. In addition, pediatric oncologist's affidavits stated that the delay in diagnosis caused the daughter to undergo additional medical treatments based on the recurrence of her cancer that she would not have otherwise undergone.


The court concluded that the plaintiffs had produced admissible testimony that showed it was more probable than not that the daughter's injury—the loss of chance of survival—was a result of the physician's negligence. Because the plaintiffs created a genuine issue of material fact on the issue of causation, the court held that the district court erred by granting summary judgment in favor of the defendants.


See: Dickhoff v. Green, et al., 2013 WL 2363550 (Minn., May 31, 2013) (not designated for publication).


See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis