Appeals Court: Family Can Sue Over Misdiagnosis

MINNEAPOLIS (AP) — A couple who claims their daughter's rare form of muscle cancer would have been curable if diagnosed earlier can sue a doctor who failed to diagnose the disease because the delay in treatment made the girl's death more likely, the MinnesotaCourt of Appeals ruled Tuesday.

The appeals court said that when it comes to cancer misdiagnosis cases, the unique circumstances of each situation must be examined. While some patients might have no recourse, the judges wrote that under their reading of case law, this lawsuit can go forward because it "has become more probable than not that the patient will not survive."

The ruling reverses a Kandiyohi County District Court decision to dismiss the case against Dr. Rachel Tollefsrud and the Family Practice Medical Center in Willmar.

Kayla and Joseph Dickhoff claim they told Tollefsrud about a suspicious bump on their now 5-year-old daughter, Jocelyn, shortly after her birth. Kayla Dickhoff says Tollefsrud told her to keep an eye on it and not to worry because it may be just a cyst.

The two sides dispute how often the bump was discussed during Joceyln's first year. While Kayla Dickhoff said she pointed it out to Tollefsrud numerous times, Tollefsrud said she recalled a conversation about it before Jocelyn's one-year checkup. Tollefsrud did not document the bump in Jocelyn's medical file until that one-year checkup, and noted it had grown.

Kayla Dickhoff took her daughter to other doctors, and Joceyln was diagnosed with an advanced form of muscle cancer that had metastasized. She underwent treatment, but her cancer recurred in 2010.

The Dickhoffs sued for damages in 2009, before the cancer came back, claiming reasonable care would have led to an earlier diagnosis while the disease was curable, and negligence by Tollefsrud and the clinic caused injuries that would lead to future expenses and pain.

The Dickhoffs' attorney, Stephen Rathke, said Joceyln "still has cancer and continues to undergo extensive treatment, but she has not won the battle yet."

The district court sided with Tollefsrud, dismissing the medical malpractice claim. The district court also denied a request for damages based on the cancer recurrence, saying expert testimony didn't show that negligence, rather than cancer, was the more likely cause of Jocelyn's injuries.

But the appeals court noted that one expert wrote in a court affidavit that Jocelyn's cancer would have been curable had it been diagnosed shortly after her birth and that she was more likely to die because it wasn't treated.

That expert, pediatric hematology and oncology Dr. Edwin Forman, said because the cancer was advanced, Jocelyn had no better than a 40-percent chance of survival, but if she had been diagnosed earlier her chances of survival would've been much higher than 60 percent.

Because of that, the appeals court found, a jury could also find that the cancer recurrence was caused by Tollefsrud's negligence.

Steven Schwegman, an attorney for Tollefsrud and the clinic, said he is disappointed by the ruling and suspects his clients will ask the Supreme Court to review the case.