Dickhoff v. Green
| Decision Date | 31 May 2013 |
| Docket Number | A11-0402 |
| Parties | Jocelyn Dickhoff by her parents and natural guardians Joseph Dickhoff and Kayla Dickhoff, Respondents, v. Rachel Green, M.D., et al., Appellants. |
| Court | Minnesota Supreme Court |
Court of Appeals
Anderson, Paul H., J.
Took no part, Anderson, G. Barry, Wright, JJ.
Office of Appellate Courts
Kay Nord Hunt, Robert J. King, Stephen C. Rathke, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis, Minnesota, for respondents.
William M. Hart, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota; and
Steven R. Schwegman, James S. McAlpine, Quinlivan & Hughes, P.A., St. Cloud, Minnesota, for appellants.
Mark A. Hallberg, Marshall S. Lichty, Hallberg & McClain, P.A., Saint Paul, Minnesota; and
Lori L. Barton, Harper & Peterson, P.L.L.C., Woodbury, Minnesota, for amicus curiae Minnesota Association for Justice.
Charles E. Lundberg, Mark R. Whitmore, Bassford Remele, P.A., Minneapolis, Minnesota, for amici curiae Minnesota Hospital Association and Minnesota Medical Association.
In a medical malpractice action, a patient may recover damages when a physician's negligence causes the patient to lose a chance of recovery or survival.
The district court erred in ruling that plaintiffs' expert testimony failed as a matter of law to establish a prima facie case of causation.
Affirmed.
ANDERSON, Paul H., Justice.
Joseph and Kayla Dickhoff, on behalf of their six-year-old daughter, Jocelyn Dickhoff, allege that appellants Dr. Rachel Tollefsrud1 and the Family Practice Medical Center of Willmar negligently failed to diagnose Jocelyn's cancer. The Dickhoffs claim that if Dr. Tollefsrud had timely diagnosed Jocelyn's cancer or referred Jocelyn to another physician for diagnosis and treatment, Jocelyn's cancer would have been curable. But, they assert, because of the delayed diagnosis, it is likely that Jocelyn's cancer will be fatal. The Kandiyohi County District Court granted summary judgment in favor of Dr. Tollefsrud and the Family Practice Medical Center, concluding that Minnesota law does not permit a patient to recover damages when a physician's negligence causes the patient to lose only a chance of recovery or survival. The court also concluded that the Dickhoffs' proof of causation failed as a matter of law and denied the Dickhoffs' claim for medical expenses arising from the recurrence of Jocelyn's cancer. The MinnesotaCourt of Appeals reversed, and Dr. Tollefsrud and Family Practice Medical Center then sought review by our court. Because we conclude that Minnesota law permits recovery for "loss of chance" in a medical malpractice action, we affirm.
Jocelyn Dickhoff was born in Willmar, Minnesota on June 12, 2006, to respondents Kayla and Joseph Dickhoff. Jocelyn was born approximately 5 weeks prematurely and spent the first 16 days of her life in the University of Minnesota Neonatal Intensive Care Unit for mild respiratory distress and pulmonary hypertension. When Kayla Dickhoff first took Jocelyn home from the hospital on June 28, 2006, she noticed a small lump on Jocelyn's left buttock.
The next day, Dr. Rachel Tollefsrud, a physician practicing with the Family Practice Medical Center of Willmar2 (collectively, "the appellants"), conducted Jocelyn's 2-week well-baby check. Kayla Dickhoff claims that she showed Dr. Tollefsrud the lump on Jocelyn's buttock at the first well-baby check and that Dr. Tollefsrud told her that the lump might be a cyst and that she would keep an eye on it. Kayla Dickhoff and Dr. Tollefsrud testified that the lump was pea-sized and moveable under the skin. However, Dr. Tollefsrud and the Dickhoffs dispute how often and to what extent they discussed the lump on Jocelyn's buttock. Dr. Tollefsrud contends that she only spoke with Kayla Dickhoff about the lump once before the 1-year well-baby check, and she does not recall the date of that conversation. Kayla Dickhoff asserts that she discussedthe lump with Dr. Tollefsrud at Jocelyn's 2-, 4-, 6-, and 9-month well-baby checks. Kayla Dickhoff claims that by Jocelyn's 9-month well-baby check, the lump was three centimeters in diameter and was large enough to protrude from Jocelyn's buttock and push up against her soft tissue.
On June 14, 2007, at Jocelyn's regularly scheduled 1-year well-baby check, Dr. Tollefsrud first documented information about a "lump" on Jocelyn's medical chart. Dr. Tollefsrud testified that the "lump" she examined at the 1-year well-baby check presented in a different area of Jocelyn's buttock than the lump she had discussed with Kayla Dickhoff earlier. On Jocelyn's medical chart, Dr. Tollefsrud wrote: Dr. Tollefsrud also included the following observations in Jocelyn's medical chart:
Following Jocelyn's 1-year well-baby check, Dr. Tollefsrud promptly scheduled an appointment for Jocelyn with Dr. Marie Schroeder, a pediatrician at the Affiliated Community Medical Center in Willmar. Dr. Schroeder examined Jocelyn and Jocelyn was subsequently referred to Dr. Robert Acton, a pediatric surgeon at the University of Minnesota Hospitals. Dr. Schroeder made this referral because she was concerned that the lump could be a malignant tumor. Dr. Brenda Weigel—a pediatric oncologist at the University of Minnesota—subsequently confirmed that the lump was cancerous.
Approximately 1 week later, Dr. Weigel diagnosed Jocelyn with alveolar rhabdomyosarcoma (ARS), a rare and aggressive childhood cancer.3 Dr. Weigel concluded that Jocelyn's cancer was at stage IV and had metastasized. Following Dr. Weigel's diagnosis, Jocelyn began an intense regimen of chemotherapy, followed by surgery and radiation therapy. Physicians at the Memorial Sloan-Kettering Cancer Center in New York City—who performed the surgery removing Jocelyn's tumor—agreed that Jocelyn had ARS, but diagnosed the cancer at stage III.4
On April 6, 2009, Joseph and Kayla Dickhoff commenced this medical malpractice action against the appellants on Jocelyn's behalf. The Dickhoffs allege that the appellants negligently failed to timely diagnose Jocelyn's cancer or refer her to a specialist for diagnosis and treatment. They allege that Jocelyn's cancer was "curable" if timely diagnosed, but now Jocelyn's cancer most likely is fatal. The Dickhoffs claim that the appellants' negligence caused Jocelyn to suffer "injuries to her body which are permanent and/or fatal, and [Jocelyn] has incurred and will incur in the future, medicaland other related expenses, pain, disability and disfigurement." The Dickhoffs also claim that the appellants' negligence caused Jocelyn to suffer loss of enjoyment of life and diminution of her earning capacity.
In support of their medical malpractice action, the Dickhoffs presented the expert opinions of Dr. James Gelbmann and Dr. Edwin Forman, pursuant to Minn. Stat. § 145.682 (2012).5 The proffered testimony of Dr. Gelbmann, a family physician practicing at the Brainerd Medical Center, was that Dr. Tollefsrud deviated from the accepted standard of care for family practice physicians in Minnesota. The proffered testimony of Dr. Forman, a pediatric hematology and oncology physician, was on causation. In Dr. Forman's proffered testimony he stated his conclusion that Dr. Tollefsrud's failure to diagnose Jocelyn's cancer resulted in a delay in treatment that made it probable that Jocelyn will not survive her cancer. More specifically, Dr. Forman, in his signed affidavits, indicated that he would testify as follows:
Based upon the changes which occurred prior to the correct diagnosis and the extent of metastasis, it is my opinion that the [ARS] was not metastatic when its symptom was first observed by Jocelyn's mother when Jocelyn was neonate. If this diagnosis had occurred at or shortly after the bump was noticed when Jocelyn was a neonate, more likely than not, Jocelyn's [ARS] would have been curable. Unfortunately, Jocelyn's disease is at Stage III/IV, and, more likely than not, she will not survive her disease.
Dr. Forman also indicated in his affidavits that he would further testify that, based on the progression of the cancer prior to the correct diagnosis and the extent of metastasis, Jocelyn's chance of survival was only 40 percent. Dr. Forman asserts that even though the overall survival rate for ARS is 60 percent, Jocelyn's chances of survival if the cancer had been timely diagnosed and treated "would have been much higher than 60 percent" because the capacity to develop distant metastases—the hallmark of stage IV ARS—"probably is not in the biology of her particular cancer."
The appellants' response to the proffered expert testimony was a complete denial that they were negligent, that they deviated from any accepted standard of medical practice, or that "any act or omission on their part caused or contributed to cause damage" to Jocelyn or the Dickhoffs. A jury trial was scheduled for May 10, 2010. On April 15, 2010, the district court ruled that the Dickhoffs could not recover any general or special damages for Jocelyn's past medical expenses. The Dickhoffs conceded that Jocelyn would have received essentially the same treatments—chemotherapy, surgery, and radiation—even in the absence of the appellants' negligence. Following the ruling, the Dickhoffs continued to seek damages for Jocelyn's future medical expenses and the additional pain and suffering that Jocelyn will experience because of those future treatments. As trial approached, the Dickhoffs requested that the court modify Minnesota's pattern jury instruction for future damages for bodily and mental harm by deleting the word "embarrassment" and inserting the phrase ...
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