"Loss of Chance" Claims

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With Dickhoff v. Green, 836 N.W.2d 321 (Minn. 2013), the Minnesota Supreme Court recognized loss of chance claims in Minnesota for the first time ever.  This article provides definitions and background so that these claims can be understood.

“Loss of chance” is a term that arises most often in cases where a patient’s disease went undiagnosed and untreated for some period of time.  In delayed diagnosis cases, the compensable injury is rarely the disease itself.  A patient presents with some existing ailment that, for whatever reason, goes undiagnosed.  Most people know that when it comes to disease, earlier treatment is usually better than later treatment.  Medical negligence can sometimes take away a patient’s ability to get that earlier treatment.  Any delay is often associated with a decreased probability of surviving the disease – a “loss of chance.” 

A diagnosis missed as a result of negligence creates liability on the part of a health care provider for the damage caused by that delay.  So to pursue a case for malpractice, there must be expert evidence establishing the compensable harm resulting from the difference between the patient’s actual health and what the patient’s health would have been with a timely diagnosis.  Identifying these percentages with medically supported precision is crucial to these cases, and there is inevitably a comparison between percentages of survival. 

Before Dickhoff, to recover noneconomic damages, it was often necessary to connect the delay in treatment to the death from the underlying disease.  This meant that the evidence would have to show that a patient’s likelihood of survival went from above 50% to below 50%.  So while a patient might have a relatively poor prognosis and a 51% chance of survival at the time a diagnosis was missed, a wrongful death claim could proceed if a delay brought that probability below 50%.  In comparison, a patient with a beginning likelihood of survival below 50% would never have a valid claim for noneconomic harms, regardless of the negligence at issue. 

Now with an ability to recover for loss of chance, the delay no longer has to be tied to death.  In other words, crossing the bright line at 50% survival is no longer necessary to get past summary judgment.  Under Dickhoff, a patient may have a valid claim for a drop in survival regardless of how big the drop is.  While it should be remembered that size of this drop directly impacts the amount of harm that may be recovered, we should all be aware that patients who did not have a cause of action before Dickhoff might be able to bring a claim now.

© 2013 Robins, Kaplan, Miller & Ciresi L.L.P.

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