• June 14, 2013

It has been some time since I took a long vacation out of the country.  But that was what I was doing last week when the Supreme Court decision in Dickhoff came down.   Wouldn’t you know it, that was a case of particular interest to me as plaintiff’s malpractice and injury lawyer, but I wasn’t here to update my prior blog post in a timely way.  Minnesota Litigator’s fearless founder and editor in chief picked up my slack though, and brought you a timely comment.  Given the level of interest in the decision, I thought I would still add my two cents at the risk of belaboring the subject.

By a 3 to 2 vote, the court broke some new ground in Minnesota tort law by recognizing the “loss of a chance” as recoverable.  When I wrote about this case previously I suggested that the case could be resolved without any big change to the tort law, and simply required application of the well-established definition of legal cause as “substantial factor” causation.  I imagine that one of the fun things about being a Supreme Court Justice is that you are not necessarily constrained to decide everything by precedent.  You can break new ground.  “Color outside the lines”, so to speak.  Whether for good or ill, that seems to be what the Supreme Court decision has done in Dickhoff.

Most of the bar buzz and press attention has been about the aspect of the case in which the court decides to join the “majority view” and adopt “loss of a chance” as a recoverable item of damage.  While this is a significant change of direction for Minnesota common law and was not strictly necessary to resolve the case in my view, this aspect of the decision isn’t as radical as one might infer from all the attention it is getting.  “Loss of a chance” is a widely recognized claim and a theory of recovery that has been around for some time.  The Court has simply chosen to realign our state’s developing common law so that is in accord with most of the others that have addressed the issue.

What may eventually prove to be the more “groundbreaking” aspect of the decision is the discussion of damages.   The invitation by the court to have a jury somehow scale its damage award, to account for the relative influence of negligence vs. nature, seems like it will raise many new questions.  In a footnote (fn 15), the Court suggests the following method of damage calculation:  “If the patient had only a 40 percent chance of survival before the medical malpractice, but the physician’s negligence reduced her chance of survival to 0 percent, then the physician should be liable for 40 percent of the damages . ..”

This idea seems very different from asking a jury to make an allocation of fault.  The allocation of fault is an obviously subjective judgment that is to be based in part on the facts, but also implicitly depends upon the value systems of the jurors.   For example, do we consider the responsibility to care for our own safety as deserving of greater weight or value than we attribute to the responsibility to act carefully toward the safety of others?  Different folks approach that question differently, and it affects their allocation of the percentage of “fault”.  It is a quite a different thing to ask a lay jury to hear all this statistical and scientific evidence about cancer progression and treatment, and then to somehow apply these percentages as an additional filter, or overlay, to calculate the damages for loss of a chance.    Perhaps this is not what the court had in mind, but that is one interpretation of the damage discussion.

Will a jury now be asked to make some kind of numerical special verdict finding about the relative contribution of provider negligence versus Mother Nature to the cause of damage?  Does applying such a finding to a damage award make sense, or is this a misuse of such statistical evidence?  If a delayed diagnosis of cancer seems to allow disease progression from one “stage” to another, such that general statistics of survivability change at each such stage, is it really valid to translate such general statistical evidence into a corresponding “percentage” change in the particular causation of damages for  the plaintiff?

If the discussion of damages in Dickhoff is where the development of the law is headed, then it seems like it may become the defense equivalent to a per diem argument — trying to suggest a mathematical solution to a problem that is more complex than simple multiplication. The plaintiff lawyer who makes a per diem argument for damages risks creating reversible error.  Similarly, when the jury is instructed about life expectancy tables they are cautioned that the tables are merely evidence, and not conclusive in determining a particular plaintiff’s remaining life.

Another aspect of this discussion of damages that raises a question is whether this “proportional recovery” approach invites jury decisions that are purely outcome based.  It is not clear to what extent this notion of “proportional recovery” is meant to be applied by the jury vs. the court.  Except as provided by the rules, when we ask the jury to apportion fault, we generally don’t tell them the full effect of their answers.  Generally the courts have tried to separate outcome based justice from a jury’s “fact finding” role.  Does the Dickhoff decision envision that it is the jury that is to scale the damage award based upon some calculation of cause? If so, do we risk conflating fact finding and outcome determination?

For me, these questions seem to underscore the wisdom of simply asking general cause and damage questions to a jury.  Was the negligence a substantial factor in causing harm?  What sum of money will fairly compensate the plaintiff for the harm?  These are questions that juries are usually pretty good at answering.

The Dickhoff opinion’s discussion of this subject of damage is open to much interpretation.   It will be interesting to see how long it takes before another one of these cases comes through the litigation process to raise these new issues in a future appeal.


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