• June 7, 2013

HourglassIn a case previously covered here on Minnesota Litigator, Mike Unger gave some thought to the difficult question then pending before the Minnesota Supreme Court as to “whether traditional notions of proof of proximate cause should apply in medical malpractice cases in which there is a negligent delay of diagnosis and treatment of cancer.”  It is all about time and probability.

The Minnesota Supreme Court, in a decision by out-going Justice Paul H. Anderson, held earlier this week that “Minnesota law allows a patient to recover damages when a physician’s negligence causes the patient to lose a chance of recovery or survival.

Justice Dietzen dissented and Chief Justice Gildea joined the dissent.

Dietzen began his dissent with an expression of sympathy for the tragic circumstances of the plaintiff and then shifts to the hard-to-dispute point that the physician’s negligence did not “cause” Jocelyn Dickhoff’s cancer, the underlying disease.  (Taken to its logical extreme, this defense would seem to exonerate physicians of any risk of liability for and and all substandard treatment of anyone with a terminal illness unless the doctors actually killed the patient before the patient would have died from the terminal illness.)

The dissent then argued that Minnesota case law simply does not allow the Minnesota Supreme Court to rule in Jocelyn Dickhoff’s favor. “We do not write on a clean slate,” Justice Dietzen pointed out and argued that prior case law dictated the Supreme Court’s decision in this case.

But even if prior did not require ruling against the plaintiffs, Justice Dietzen’s opinion continues,  the Supreme Court should have ruled against them.

Specifically, the loss of chance doctrine that the majority adopts today undermines traditional tort principles of causation and violates fundamental fairness by holding physicians liable for harms that are not caused by their negligence.

It is clear that traditional tort principles are challenged by multiple causes of harm and the use of statistical evidence and expert opinion to prove likely future harm.  On the other hand, the very idea of putting a dollar value on “pain and suffering,” the sense of smell, “loss of consortium” and on and on has always been an enormous challenge, has always inherently included uncertainty and speculation, but this has not stopped our courts from enabling people to recover for such inuries.

But Justice Dietzen concludes by warning:

In sum, the majority’s decision greatly expands the liability of medical professionals in this state and unfairly holds physicians liable for harms that may never materialize and, if they do occur, are not caused by the physician’s negligence. In so doing, the majority sua sponte overrules two well-established cases and undermines unbroken and fundamental principles of tort law. Such a drastic expansion of liability, especially in the healthcare field, implicates serious policy considerations, which are better addressed by the Legislature.

Time will tell whether Justice Dietzen and Chief Justice Gildea’s reservations are warranted.

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