Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient. Recently, the Minnesota Supreme Court held that Minnesota law permits recovery for “loss of chance” in a medical malpractice action. Dickhoff ex rel. Dickhoff v. Green, 2013 WL 2363550 (Minn. 2013). The loss of chance doctrine recognizes that a patient values her chances of recovery or survival and 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.
Negligence on the part of the physician or other medical professional could include an error in diagnosis, mismedication, or failure to provide adequate life-saving measures.
In the Dickhoff case, parents brought a medical malpractice claim against a treating physician and medical center for failing to timely diagnose or refer their daughter to a specialist after the family repeatedly questioned the physician about a lump on the child’s buttocks. Later, the lump was found to be cancerous and the child was diagnosed with an aggressive childhood cancer. In their medical malpractice claim, the parents claimed that the doctor’s negligence increased the risk that the child’s cancer would recur and decreased her chances of survival. The parents alleged that the cancer was “curable” if timely diagnosed; however, based on the delayed diagnosis and treatment, the cancer was most likely fatal.
The Court provided a two-step process with respect to measuring damages in a loss of chance case. The first step is to measure the chance lost. “Loss of chance damages are measured as the percentage probability by which the defendant’s tortuous conduct diminished the likelihood of achieving some more favorable outcome.” The second step is to value the lost chance. The Court adopted the “proportional-recovery rule.” Under the rule, the total amount of damages recoverable is equal to the percentage chance of survival or cure lost, multiplied by the total amount of damages allowed for the death or injury.
The Kosieradzki • Smith Law Firm represents clients in cases involving catastrophic injury caused by nursing homes and other care facilities that fail to provide proper care. All too frequently, nursing home’s deprive patients in critical need, for example when a resident requires CPR or emergency medical attention (click here for an example). By failing to respond in these critical moments, nursing home staff decrease the patients’ chance of survival. If you believe your loved one has been harmed due to a nursing home’s failure to take action, you should take action and contact the Kosieradzki • Smith Law Firm online or call us toll-free at (877) 552-2873 to set up a no-cost, no-obligation consultation.
