Minnesota now Allows Malpractice Lawsuits based on "Lost Chance of Survival"

June 12, 2013

8649480117_cf9bb78f89.jpgMedical malpractice lawyers at Pintas & Mullins highlight a recent ruling by the Minnesota Supreme Court, redefining the rights of patients trying to recover damages from health care providers. Just last week in May 2013 the court decided that one family may sue the doctor who failed to diagnose their daughter's cancer.

The case centered on a now six-year-old girl with a rare and aggressive childhood cancer. When the girl was just two weeks old, in 2006, her mother noticed a suspicious lump on her body and notified her physician, who failed to diagnose it. As a result of the lost potential for treatment and remission, her parents sued the doctor, Dr. Rachel Tollefsrud, and the clinic, Family Practice Medical Center.

Minnesota is now the 23rd state to allow patients to sue for "lost chances" of recovery or survival. Previously, Minnesota allowed medical negligence lawsuits only if the patient had "improbable survival," meaning the chances that patient will survive was less than 50%.

The family's lawsuit alleges that the doctor failed to diagnose the little girl's rhabdomyosarcoma before the cancer spread throughout her body. Rhyabdomyosarcoma is the most common type of soft tissue sarcoma in children, usually beginning in muscles attached to bones.

In its decision, the state's Supreme Court recognized the lost chance of survival as a damage and allowed the family to recover for it. The decision is significant because the large number of patients who were injured by the negligence of a physician now have an avenue for recovery that was not available to them before. Diagnostic errors, after all, are the leading causes of death by medical negligence.

The battle surrounding this case has been ongoing since 2009, when the family first sued Dr. Tollefsrud and her clinic. A County judge initially threw out the case because the claim - reduced chance of survival - was not recognized in Minnesota. In 2012, the state's Court of Appeals unanimously reversed the decision, determining that the girl would have been more likely to survive if that cancer was diagnosed sooner.

Several medical experts testified that the year-long delay in diagnosis indeed reduced her chances of living by between 40 and 60 percent. Currently, her chance of survival is at about 5%. The Supreme Court upheld this decision, stating that a patient's chance to recover or live is something of value. If taken away, that chance should be regarded as an injury, with damages made available.

Justice Paul Anderson wrote that the family deserved the opportunity to recover these damages. Meanwhile, the little girl will turn seven soon, finishing up first grade while undergoing chemotherapy.

The Journal of the American Medical Association recently estimated that medical negligence is the third leading cause of death in the U.S., behind cancer and heart disease. In fact, in 2012, malpractice payouts totaled about $3 billion. Malpractice is most often defined as deviation from the recognized "standard of care" in treatment or diagnostics.

If you are the victim of malpractice, contacting seasoned attorney is the first step to gaining compensation. A skilled lawyer can investigate your claim, obtain medical records, interview the patient, family members and friends, and secure medical experts to testify. It is important to note that statues of limitations (deadlines by which a lawsuit must be filed) differ between states, so securing an attorney as soon as possible is critical.

Medical malpractice lawyers at Pintas & Mullins will continue to report on any significant legislative issues surrounding medical negligence. If you or a loved one was seriously injured due to the negligence of a health care professional, you have important legal rights, and may be entitled to compensation for your pain and suffering.