In May 2013, the Minnesota Supreme Court recognized “loss of chance” as a cause of action for medical malpractice. No longer must plaintiffs establish "but for" causation. No longer must plaintiffs establish that without the defendant's negligence it is "more likely than not" there would have been no injury.
But by June, the defendants and some professional medical associations petitioned the Supreme Court to rehear the case. Petitions for rehearing are rarely granted. And this one was no exception.
This week, the court denied the petition. Today, the court issued a judgment reversing the trial court which had granted summary judgment to the medical defendants.
This is important to all sorts of patients. But it has an especially big impact on medical futility cases. In Wendland v. Sparks, for example, the clinicians unilaterally refused CPR. While CPR was probably not going to be effective had it been offered, there was a small chance it could work. The Iowa Supreme Court held that the family could recover damages for that loss of chance, even if very small.
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