HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, July 2, 2013

Minnesota Recognizes Cause of Action for "Loss of Chance of Life"

The traditional rule in wrongful death cases is that a plaintiff cannot recover unless survival was more likely than not. This means that a healthcare practitioner who causes the death of a patient through a negligent act escapes liability when the patient had a less than 51% chance of survival before the  negligent act. On the other hand, a patient who proves that he or she had a greater than 51% chance of survival will recover for the negligent act that causes death.

In May of 2013, the Supreme Court of Minnesota, in Dickhoff v. Green, followed a short line of cases recognizing as actionable a patients increased risk of dying resulting from her doctor’s negligent failure to secure timely diagnosis and treatment of cancer.[1] In Dickoff, a physician failed to diagnose a lump on a baby as cancer for over a year. The baby was then diagnosed by another physician as having a rare and aggressive cancer. The baby subsequently underwent a tumor-removal surgery, chemotherapy and radiotherapy, but remained dangerously ill. A timely referral would have given the baby, at a minimum, a 60% chance of survival. The delay in diagnosis decreased this chance 40%. Thus, the plaintiff made out a prima facie case for a 20% reduction in her chances to stay alive.

Following other state courts,[2] the Minnesota Supreme Court ruled that this reduction constitutes actionable damage in and of itself holding that a resident can successfully sue her doctor for an increased risk of the underlying illness’s recurrence and a decreased life expectancy as stand-alone damage. The only limitation that the Court placed on this cause of action is that the plaintiff's increased risk and decreased life expectancy must be substantial.  


[1] Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013).

[2] See e.g., Hesrkovitz v. Group  Health Cooperative of Puget Sound, 99 Wash. 2d 609, 664 P. 2d 474 (1983); DeBurkarte v. Louvare, 393 N.W.2d 131(Iowa 1986); Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St. 3d 483, 668 N.E2d 480 (1996); Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000).

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