Say a doctor misses your cancer. If it had been caught on time, you had a 40 percent chance of beating it. Caught late, you have 10 percent. You die.
Until May 31, 2013, a Minnesota court would have told your family the doctor didn’t cause your death. You were more likely than not to die anyway, so the negligence wasn’t the “more probable than not” cause of anything, and the claim was worth nothing. The doctor who took away three-quarters of your chance owed zero.
That’s not the law anymore. In Dickhoff ex rel. Dickhoff v. Green, 836 N.W.2d 321 (Minn. 2013), the Minnesota Supreme Court held that the chance itself is worth something, and that a doctor who negligently takes it away “should be liable for the value of that lost chance.” Id. at 334. Not the whole death. The value of the chance. And my favorite part: the family that won the case kept telling the court it wasn’t a loss-of-chance case.
The family that won didn’t ask for this
The facts were about as hard as facts get. A mother noticed a small lump on her newborn daughter’s buttock the day she brought her home from the hospital. The family’s version is that she raised it with the family-practice doctor at well-baby checks over the following months. The doctor first charted a lump at the one-year visit, referred the baby out promptly, and the specialists diagnosed alveolar rhabdomyosarcoma, a rare and aggressive childhood cancer. Id. at 324–25.
The family’s expert said the cancer probably wasn’t metastatic when the lump first appeared, that timely diagnosis “more likely than not” would have made it curable, and that the child’s chance of survival was now 40 percent. Id. at 326. The family conceded she’d have needed essentially the same chemotherapy, surgery, and radiation either way. Id. at 327.
The family framed this as a traditional negligence claim about a lost cure. The district court called it a loss-of-chance claim, said Minnesota didn’t allow those, and dismissed. Id. at 327–28. The Supreme Court agreed it was a loss-of-chance claim. It just disagreed about whether Minnesota allows them:
Simply because the Dickhoffs have continually labeled their claim a “traditional tort negligence claim” does not mean that our court is bound to accept that mischaracterization.
— Dickhoff, 836 N.W.2d at 330 n.8
The dissent’s response was that nobody had briefed it. In more than 100 pages, it said, the parties didn’t meaningfully address whether the court was bound by its old cases or whether loss of chance should be a distinct injury. Id. at 343 n.6 (Dietzen, J., dissenting). So the doctrine that now applies to delayed-diagnosis cases across Minnesota arrived in a case where the winning side was arguing something else.
What did Minnesota law say before 2013?
Less than people think. The usual story is that the Supreme Court rejected loss of chance twice, in the early 1990s. Dickhoff says it never actually did.
Leubner v. Sterner, 493 N.W.2d 119 (Minn. 1992), was a delayed breast-cancer biopsy. Its holding was about something else entirely: “We hold there is no such thing as a medical malpractice cause of action for ‘negligent aggravation of a preexisting condition,’ and reverse the court of appeals.” Id. at 120. The patient’s lost-chance theory had been rejected below, and the plaintiffs “did not file a notice of review to preserve their ‘lost chance of survival’ claim.” Id. at 121. The court did muse about “the amorphous and speculative nature of the asserted ‘injury,’” and in the very next sentence said “plaintiffs have not asserted such a claim.” Id. Dickhoff called the musing “pure dictum.” 836 N.W.2d at 332 n.11.
Fabio v. Bellomo, 504 N.W.2d 758 (Minn. 1993), came closer. Another missed breast cancer. The court wrote: “We have never recognized loss of chance in the context of a medical malpractice action, and we decline to recognize it in this case.” Id. at 762. Then it added that even if it did adopt the doctrine, the plaintiff’s own oncologist put her recurrence risk around 30 percent and her odds of surviving at least 20 years at “at least 50-50”, so the claim would fail anyway. Id. at 763. Two reasons, neither one necessary. Dickhoff read that as dictum too and called it “our perfunctory treatment of the loss of chance doctrine in Fabio”. 836 N.W.2d at 332.
The dissent thought that was rewriting history. In its view the majority “sua sponte overrules long standing precedent and upsets an unbroken tradition of tort law in this state.” Id. at 338 (Dietzen, J., dissenting). Two justices dissented. Two others took no part. Id. at 338, 349.
Call it overruling, call it clarifying. Since May 31, 2013, the answer in Minnesota is yes.
Above 50 percent or below it, a lost chance is a real injury
We now consider whether Minnesota law allows a patient to recover damages when a physician’s negligence causes the patient to lose a chance of recovery or survival. We conclude that it does.
— Dickhoff, 836 N.W.2d at 333
The court picked a side in a split among the states. Some courts get there by loosening the causation standard. Minnesota didn’t: “We reject the causation rationale, but we agree with those courts that treat the reduction of a patient’s chance of recovery or survival as a distinct injury.” Id. at 334.
That choice matters, and it cuts both ways. The lost chance is the injury. So you still have to prove, by the ordinary standard, that the doctor caused that injury. And it doesn’t matter which side of 50 percent you started on. A patient “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.” Id. at 333–34.
The court of appeals had taken a different road in the same case. It said a plaintiff states a claim if the negligence pushed the odds of death from unlikely to likely. Id. at 328. The Supreme Court threw that out with the best two sentences in the opinion:
The troubling consequence of the court of appeals’ holding is that a plaintiff whose odds of survival drop from 51 percent to 49 percent has a cognizable medical malpractice claim, while a patient whose odds of survival are reduced from 49 percent to 0 percent as a result of a physician’s negligence is unable to ever establish, as a matter of law, that the physician caused any harm. We conclude that such an approach is unreasonable.
— Dickhoff, 836 N.W.2d at 337
Two points of odds got you paid. Forty-nine points got you nothing. That’s what the old line produced, and the court said so.
How does a Minnesota court put a number on a lost chance?
Two steps. First you measure the chance that was lost, using whatever the medical evidence supports. In Dickhoff, that was the five-year survival rate for the child’s cancer. Id. at 335. Then you value it, using what the court called the proportional-recovery approach:
the total amount of damages recoverable is equal to the percentage chance of survival or cure lost, multiplied by the total amount of damages allowable for the death or injury.
— Dickhoff, 836 N.W.2d at 336
The court gave its own example in a footnote. A patient with a 40 percent chance of survival is reduced to 0 percent and dies. If total damages for the death are $100,000, “then the patient’s loss of chance damages would be $40,000.” Id. at 336 n.15.
Run the example from the top of this article through the same formula. A 40 percent chance cut to 10 percent is 30 percentage points lost. If a jury values the death at $1,000,000, the lost-chance award is 30 percent of that: $300,000. Before 2013, the same file was worth $0.
And the formula cuts the other way, too. A defendant who took 30 points of a 40 percent chance doesn’t pay for the whole death. That was the court’s point about fairness: proportional recovery limits the risk that a provider gets “assessed damages for harm that he did not cause”. Id. at 336 (quoting Matsuyama v. Birnbaum, 890 N.E.2d 819, 840 (Mass. 2008)).
What if the patient is still alive? That was the Dickhoff posture. The child’s cancer had recurred, and her death was “very likely, but not certain.” Id. at 336. So the baseline isn’t damages for a death. The court said the measure is the value of the reduction in her life expectancy from what it was before the negligence, and that a jury sets that number the way it sets other hard-to-calculate personal-injury damages. Id. Future damages still have to be proved “to a reasonable certainty.” Id. at 336 n.16. How courts and juries handle future losses and discounting is at /news/minnesota-future-damages-and-present-value/.
The dissent’s sharpest criticism lives right here. Its hypothetical: a young patient whose life expectancy drops from 80 years to 66 because of a 20 percent chance of dying at age 10. Under the majority’s rule, she could sue while alive and recover the value of those 14 years, even though she’s 80 percent likely to live to 80 anyway. The dissent called that “a windfall at the expense of physicians and the healthcare system and an invitation to abuse.” Id. at 348 (Dietzen, J., dissenting). The majority’s answer, in a footnote, was that nearly half the states had adopted some form of the doctrine and the empirical work it cited found “no significant impact on either court docket congestion or medical malpractice insurance costs.” Id. at 335 n.14 (quoting a 2010 law review comment). Both arguments are still sitting in the reporter for the next lawyer who wants one.
What do you still have to prove?
Almost everything you had to prove before. Dickhoff didn’t lower the bar on causation. It moved the target.
The patient “retains the burden of proving by the traditional preponderance of the evidence standard that the physician’s negligence substantially reduced the patient’s chance of recovery or survival.” Id. at 337. The court also agreed with courts that require the lost chance to be “more than a token or de minimis amount.” Id. at 334 n.13. It didn’t say where that line is. It said only that a drop from at least 60 percent to 40 percent “as a matter of law, is neither token nor de minimis.” Id.
You still need an expert, and the expert still has to come in on Minnesota’s schedule. Minn. Stat. § 145.682 requires expert affidavits in a malpractice case that depends on expert testimony, and missing them results, “upon motion, in mandatory dismissal with prejudice” of the claims that need an expert. § 145.682, subd. 6(a)–(b). The Dickhoff family’s expert affidavits under that statute were the whole ballgame on summary judgment. 836 N.W.2d at 326, 337–38. I walked through the affidavit deadlines and the dismissal penalties at /news/minnesota-expert-affidavit-merits-gate/, and how a malpractice case gets tried at /news/minnesota-medical-malpractice-trial-procedure/.
One more thing about the expert. In 2024 the Supreme Court held that § 145.682 doesn’t impose a tougher causation standard on malpractice plaintiffs than ordinary negligence law does: “In sum, the amount of proof necessary to avoid summary judgment on causation is no different in medical malpractice cases than the level of proof in ordinary negligence cases.” Rygwall v. ACR Homes, Inc., No. A22-1376, slip op. at 31 (Minn. May 10, 2024). It relied on Dickhoff for the more-probable-than-not standard, id., and borrowed Dickhoff’s own closing footnote to make the point that a plaintiff facing “an uphill battle” still gets the chance to prove her case. Id. at 36 n.15 (quoting Dickhoff, 836 N.W.2d at 338 n.17). Rygwall was a wrongful-death case about whether faster emergency care would have saved a woman who had aspirated, not a loss-of-chance case. But it tells you the court still stands behind Dickhoff’s causation framework eleven years on.
Has any court applied it since?
Less often than you’d think. I searched for later Minnesota appellate decisions citing Dickhoff and for “loss of chance” and “lost chance” in Minnesota opinions, and every decision I found cites Dickhoff for something other than the doctrine: the elements of a malpractice claim, the causation standard, the footnote about uphill battles. I couldn’t find a published Minnesota appellate decision applying the proportional formula to a verdict, or deciding how it works in a wrongful-death action brought by a trustee. I searched CourtListener, which doesn’t index every Minnesota opinion, so that’s a statement about what it holds.
The wrongful-death question is a real one. The Dickhoff footnote that does the $40,000 math is about a patient who dies. But in Minnesota a death claim belongs to a court-appointed trustee under a statute, Minn. Stat. § 573.02, and the dissent noted the defense argument that a claim for death “is created by the decedent’s death” and is a creature of statute. 836 N.W.2d at 345 n.7 (Dietzen, J., dissenting) (quoting Regie de l’assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85, 89 (Minn. 1987)). The dissent didn’t decide it, and the majority didn’t take it up. How the trustee’s claim works is at /news/minnesota-wrongful-death-trustee/.
The clock doesn’t care how good the theory is
A patient’s malpractice claim “must be commenced within four years from the date the cause of action accrued.” Minn. Stat. § 541.076(b). A death claim against a physician, surgeon, dentist, hospital, or sanitarium “shall be commenced within three years of the date of death, but in no event shall be commenced beyond the time set forth in section 541.076.” Minn. Stat. § 573.02, subd. 1. Delayed-diagnosis cases are where the accrual question gets ugly, because the negligence and the discovery can sit years apart. The details are at /news/minnesota-medical-malpractice-deadlines/.
Loss of chance changed what a missed diagnosis is worth. It didn’t change when you have to file.
Madgett Law, LLC
Madgett Law, LLC handles Minnesota medical negligence and wrongful death claims, including the expert-affidavit requirements of § 145.682 and death claims brought by a trustee under chapter 573. More on our injury work is on our personal injury page. If a diagnosis came late and you’ve been told the odds were bad anyway, that’s no longer the end of the conversation in Minnesota. Send us a message.
Sources: Dickhoff ex rel. Dickhoff v. Green, 836 N.W.2d 321, 324–28, 330 & n.8, 332 & n.11, 333–34 & n.13, 335 & n.14, 336 & nn.15–16, 337–38 (Minn. 2013) (majority); id. at 338, 343 n.6, 345 n.7, 348 (Dietzen, J., dissenting); id. at 349 (Gildea, C.J., dissenting); rehearing denied Sept. 9, 2013. Leubner v. Sterner, 493 N.W.2d 119, 120–21 (Minn. 1992). Fabio v. Bellomo, 504 N.W.2d 758, 762–63 (Minn. 1993). Rygwall v. ACR Homes, Inc., No. A22-1376, slip op. at 20, 31, 36 n.15 (Minn. May 10, 2024) (Minnesota Judicial Branch slip opinion). Minn. Stat. § 541.076(b) (four-year limitations period); 1999 Minn. Laws ch. 23, §§ 2–3 (enacting § 541.076, effective August 1, 1999, for actions commenced on or after that date). Minn. Stat. § 573.02, subd. 1 (death actions; three years from death, not beyond § 541.076). Minn. Stat. § 145.682, subd. 6(a)–(b) (mandatory dismissal upon motion). This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no particular outcome is promised or implied.