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STATE OF MINNESOTA IN COURT OF APPEALS A11-402 Jocelyn Dickhoff by her parents and natural guardians Joseph Dickhoff and Kayla Dickhoff, Appellants, vs. Rachel Green, M. D., et al., Respondents. Filed January 3, 2012 Reversed Ross, Judge Kandiyohi County District Court File No. 34-CV-09-462 Kay Nord Hunt, Stephen C. Rathke, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis, Minnesota (for appellants) William M. Hart, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota, and Steven R. Schwegman, James S. McAlpine, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for respondents)

Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Ross, Judge. SYLLABUS A medical-malpractice claim based on a physician's failure to diagnose cancer is not barred as a mere "loss of chance" (or reduced-chance) claim when the misdiagnosis resulted in a delay in treatment that makes it more likely than not that the patient will not survive the cancer.

OPINION ROSS, Judge This medical-malpractice case involves a delayed diagnosis of potentially terminal cancer in a newborn. The baby's mother alleges that she showed the pediatrician a bump on the newborn shortly after the birth and at multiple appointments in the year that followed. The physician did not note the bump on the child's medical chart until her oneyear checkup, after which the bump was diagnosed to be alveolar rhabdomyosarcoma, a rare form of childhood cancer. Kayla and Joseph Dickhoff sued their daughter Jocelyn's physician, Dr. Tollefsrud, and Family Practice Medical Center of Willmar, alleging that reasonable care would have led to an earlier diagnosis while the disease was curable. The district court dismissed the medical-malpractice claim as a reduced-chance claim barred in Minnesota. It also denied damages based on the recurrence of the cancer, holding that the parents' expert's affidavit did not establish that it was more probable than not that the recurrence was the result of negligence. We reverse because the medical-malpractice claim is not a claim for reduced chance and the expert affidavit supports the allegation that the physician's negligence caused the child's chances of recurrence to move from unlikely to probable. FACTS Jocelyn Dickhoff was born on June 12, 2006, to Kayla and Joseph Dickhoff. Jocelyn came home two weeks later and on that day Kayla alleges that she noticed a bump on Jocelyn's buttocks. The next day, Kayla and Joseph brought Jocelyn to Dr. Rachel Tollefsrud (formerly Dr. Rachel Green) at Family Practice Medical Center of 2

Willmar for her two-week well-baby checkup. Kayla alleges that during the checkup she showed Dr. Tollefsrud the bump. The bump was moveable under the skin and Jocelyn was not sensitive to it. Kayla alleges that Dr. Tollefsrud told her to keep an eye on it, but not to worry because it may be just a cyst. The parties dispute when and how often Kayla and Dr. Tollefsrud discussed Jocelyn's bump over the next year. Kayla testified that she pointed out the bump to Dr. Tollefsrud at numerous appointments and that, as the year progressed, the bump grew in size and became less moveable. Dr. Tollefsrud recalled having a conversation about Jocelyn's bump before Jocelyn's one-year checkup. She also recalled examining the buttocks area and observing a bump that was about 0.6 centimeters in size and moveable under the skin, but she could not recall at which visit that had occurred. Dr. Tollefsrud did not document the bump in Jocelyn's medical file until Jocelyn's one-year checkup on June 14, 2007. She then noted that Jocelyn "[h]as had small lump on left buttock, which had been unchanged, now has gotten larger." The bump had grown to four centimeters wide. Kayla took Jocelyn to other doctors, and eventually to Dr. Brenda Weigel at the end of July 2007. Dr. Weigel is a pediatric oncologist. The next month Dr. Weigel diagnosed Jocelyn with stage IV alveolar rhabdomyosarcoma (RMS), a cancer of the muscle, and concluded that the cancer had metastasized. Doctors at Sloan-Kettering in New York later opined that Jocelyn's cancer was at stage III. About 350 children are diagnosed annually with RMS, and children under age one generally have a worse prognosis than others. The site of Jocelyn's cancer, the perianal 3

area, is unfavorable. Jocelyn underwent six months of chemotherapy, had the tumor surgically removed, and underwent additional chemotherapy and radiation. The Dickhoffs brought this lawsuit on behalf of Jocelyn in April 2009. They asserted that Dr. Tollefsrud and Family Practice Medical Center negligently failed to diagnose Jocelyn's symptoms or refer them to a specialist. They alleged that the cancer would have been curable under a proper, timely diagnosis. They also alleged that Dr. Tollefsrud's and Family Practice's negligence resulted in injuries to Jocelyn that are permanent or fatal and will result in future expenses, pain, disability, and disfigurement. The Dickhoffs planned to have two experts testify at trial. Dr. James Gelbmann, a family-practice physician at the Brainerd Medical Center, would have testified on the standard of care and opined that Dr. Tollefsrud deviated from it. Dr. Edwin Forman, a pediatric hematology and oncology physician, would have opined on the element of causation. This appeal focuses mainly on Dr. Forman's opinion. Dr. Forman averred in affidavits that, had the diagnosis occurred at or shortly after the bump was noticed while Jocelyn was a neonate, her cancer more likely than not would have been curable. But because Jocelyn's cancer progressed to stage III or IV without a diagnosis and treatment, now it is more likely than not that she will not survive the cancer. Dr. Forman opined that because the cancer had progressed to stage III, she has a 60-percent chance of cancer recurrence and death, or a 40-percent chance of survival. But he believes that she would have had a better-than 60-percent chance of survival if the cancer had been timely diagnosed.

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A jury trial was scheduled for May 10, 2010, but in April 2010, Jocelyn's cancer recurred and she again underwent chemotherapy. Dr. Tollefsrud and Family Practice moved the district court to preclude Jocelyn's claim for damages, characterizing it as a claim for reduced chance of life or decreased life expectancy. The district court ruled that claims for past and future medical expenses were precluded because Jocelyn needed the same care and treatment regardless of whether she had been diagnosed earlier. The remaining claim for damages focused on the Dickhoffs' expenses arising from the recurrence of Jocelyn's cancer in April 2010. Jocelyn's deteriorated medical condition delayed the trial. In June 2010, the respondents moved to dismiss the Dickhoffs' claim for reduced chance of life and for medical expenses based on the cancer's recurrence. They argued that the malpractice claim is essentially a claim for reduced chance of life because the allegations refer to a "shortened life expectancy" and "deprivation of normal life expectancy," and reduced chance is not recognized in Minnesota under Fabio v. Bellomo, 504 N.W.2d 758 (Minn. 1993). They also argued that the claim for medical expenses is not supported by any admissible expert evidence proving that Dr. Tollefsrud caused the damages. The Dickhoffs responded to the motion to dismiss as a summary judgment motion and, relying on their expert's affidavits, argued that the claim is not barred as a reducedchance claim because a medical-malpractice cause of action exists in Minnesota when a physician's negligence causes a patient's chances of survival to fall below 50 percent. The district court granted Dr. Tollefsrud and Family Practice's motion. It held that claims for reduced chance of life, like the Dickhoffs', have been consistently rejected by 5

the supreme court. It also dismissed their claim for medical expenses because the expert testimony did not establish that it was more probable than not that the respondents' alleged negligence, rather than the existence of the cancer itself, caused Jocelyn's damages. The Dickhoffs appeal. ISSUES I. Did the district court err by dismissing the Dickhoffs' claim as a claim for reduced chance? Did the district court err by dismissing the Dickhoffs' claim for damages arising from the recurrence of Jocelyn's cancer? ANALYSIS The Dickhoffs challenge the district court's dismissal of their medical-malpractice claim as a claim for reduced chance and their claim for damages arising from the recurrence of Jocelyn's cancer as unsupported by evidence. Because the district court relied on information in Dr. Forman's affidavits not originally included in the pleadings, we will treat the respondents' motion as one for summary judgment. See Minn. R. Civ. P. 12.03. "Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Anderson v. State Dep't of Natural Res., 693 N.W.2d 181, 186 (Minn. 2005). We review the grant of summary judgment de novo. Zip Sort, Inc. v. Comm'n of Rev., 567 N.W.2d 34, 37 (Minn. 1997).

II.

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I The Dickhoffs argue that the district court dismissed their medical-malpractice claim inappropriately by mischaracterizing it as a claim for "loss of chance." To establish a prima facie case of medical malpractice, a plaintiff must demonstrate by expert testimony (1) the applicable standard of care, (2) that the defendant breached that standard of care, and (3) that the breach was a direct cause of the plaintiff's injuries. Fabio v. Bellomo, 504 N.W.2d at 762. Both aspects of the third issue--causation and injury--are contested on appeal. A malpractice plaintiff must prove by expert testimony that it is more probable than not that the alleged tortfeasor's negligence caused her injuries. Leubner v. Sterner, 493 N.W.2d 119, 121 (Minn. 1992). Causation is generally a fact question for the jury, but where reasonable minds can arrive at only one conclusion, causation is a question of law. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995). Regarding injury, the Dickhoffs maintain that Jocelyn has stated a medicalmalpractice claim for failure to diagnose, relying on MacRae v. Group Health Plan, Inc., 753 N.W.2d 711 (Minn. 2008). MacRae addressed the issue of when the statute of limitations accrues in a medical-malpractice claim for cancer misdiagnosis. Id. at 717. More specifically, it addressed when a negligent misdiagnosis causes a patient to suffer a compensable injury. Id. The supreme court reasoned that "a court must determine when a cause of action accrues in cases of misdiagnosis of cancer by looking at the unique circumstances of the particular case to determine when some compensable damage occurred as a result of the alleged negligent misdiagnosis." Id. at 721

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