Tuesday, July 2, 2013
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. 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, 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.
 Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013).
 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).