Wrongful Death Loss of Change of Survival Claim

Written By: Kenneth LaBore | Published On: 11th January 2019
New Cause of Action for the Lost Chance of Survival

Minnesota Supreme Court Adopts Loss of Chance Doctrine

Based on a case called Dickhoff v. Green the Minnesota Supreme Court has ruled that there is a claim for “loss of chance” that is the lost or diminished chance of a full life expectancy. In theory his claim would apply in situations where there is a living plaintiff who has a shortened or reduced chances of full life expectancy. There is also a loss of chance of survival claim that can be plead as an alternative theory to the underlying wrongful death allegations.

Minnesota Jury Instruction Guide Has New Loss of Chance Instruction

Minnesota now has a Jury Instruction under MNCIVJIG 80.11 for “Loss of Chance” which would allow for a claim for diminished or reduced chance living a full life span, had the neglect not occurred.

To discuss a potential medical malpractice wrongful death claim with an experienced attorney call Kenneth LaBore at 612-743-9048.

Minnesota Loss of Chance Doctrine Also Includes a Loss of Survival Claim

The Loss of Chance Doctrine had traditionally two types of claims one for a reduce chance of a full live expectancy. Usually a claim where the number of months or years of life is reduced due to the neglect, in theory brought by that person or their representative. A Loss of Chance of Survival claim is a claim where the injured party dies and they lost their chance for survival.

The Lost Chance of Survival Claim would be brought by the next-of-kin of the deceased. An example would be a failure to respond to a change in condition including after a fall or other injury, or a failure to provide CPR.

Wrongful Death Loss of Chance as An Alternative Theory

There is a new Minnesota Jury Instruction, MN CIVJIG 80.96 titled “Wrongful Death – Loss of Chance as an Alternative Theory. Which allows a plaintiff to argue for both a traditional wrongful death claim and a loss of chance of survival claim. The difference would be in whether the jury believed the neglect was the “direct cause” of the death or if the negligence in providing care and treatment was a direct cause of the reduction in the chances of survival.

The is then asked in MNCIV JIG 80.96 to determine the percentage the decedent’s chance of survival or a more favorable outcome was reduced by the care provider’s negligence.

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If you have concerns about care provided to a resident in a nursing home, assisted living or any other type of elder care provider contact Attorney Kenneth LaBore for a Free Consultation to discuss your legal rights and options.

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