Dickhoff ex rel. Dickhoff v. Green

OPINION

ANDERSON, PAUL H., Justice.

Joseph and Kayla Dickhoff, on behalf of their six-year-old daughter, Jocelyn Dick-hoff, allege that appellants Dr. Rachel Tol-lefsrud 1 and the Family Practice Medical Center of Willmar negligently failed to diagnose Jocelyn’s cancer. The Dickhoffs claim that if Dr. Tollefsrud had timely diagnosed Jocelyn’s cancer or referred Jocelyn to another physician for diagnosis and treatment, Jocelyn’s cancer would have been curable. But, they assert, because of the delayed diagnosis, it is likely that Jocelyn’s cancer will be fatal. The Kandiyohi County District Court granted summary judgment in favor of Dr. Tollefs-rud and the Family Practice Medical Center, concluding that Minnesota law does not permit a patient to recover damages when a physician’s negligence causes the patient to lose only a chance of recovery or survival. The court also concluded that the Dickhoffs’ proof of causation failed as a matter of law and denied the Dickhoffs’ claim for medical expenses arising from the recurrence of Jocelyn’s cancer. The Minnesota Court of Appeals reversed, and Dr. Tollefsrud and Family Practice Medical Center then sought review by our court. Because we conclude that Minnesota law permits recovery for “loss of chance” in a medical malpractice action, we affirm.

Jocelyn Dickhoff was born in Willmar, Minnesota on June 12, 2006, to respondents Kayla and Joseph Dickhoff. Jocelyn was born approximately 5 weeks prematurely and spent the first 16 days of her life in the University of Minnesota Neonatal Intensive Care Unit for mild respiratory distress and pulmonary hypertension. When Kayla Dickhoff first took Jocelyn home from the hospital on June 28, 2006, she noticed a small lump on Jocelyn’s left buttock.

The next day, Dr. Rachel Tollefsrud, a physician practicing with the Family Practice Medical Center of Willmar2 (collec*325tively, “the appellants”), conducted Jocelyn’s 2-week well-baby check. Kayla Dickhoff claims that she showed Dr. Tol-lefsrud the lump on Jocelyn’s buttock at the first well-baby cheek and that Dr. Tol-lefsrud told her that the lump might be a cyst and that she would keep an eye on it. Kayla Dickhoff and Dr. Tollefsrud testified that the lump was pea-sized and moveable under the skin. However, Dr. Tollefsrud and the Dickhoffs dispute how often and to what extent they discussed the lump on Jocelyn’s buttock. Dr. Tollefsrud contends that she only spoke with Kayla Dick-hoff about the lump once before the 1-year well-baby check, and she does not recall the date of that conversation. Kayla Dick-hoff asserts that she discussed the lump with Dr. Tollefsrud at Jocelyn’s 2-, 4-, 6-, and 9-month well-baby checks. Kayla Dickhoff claims that by Jocelyn’s 9-month well-baby check, the lump was three centimeters in diameter and was large enough to protrude from Jocelyn’s buttock and push up against her soft tissue.

On June 14, 2007, at Jocelyn’s regularly scheduled 1-year well-baby check, Dr. Tol-lefsrud first documented information about a “lump” on Jocelyn’s medical chart. Dr. Tollefsrud testified that the “lump” she examined at the 1-year well-baby check presented in a different area of Jocelyn’s buttock than the lump she had discussed with Kayla Dickhoff earlier. On Jocelyn’s medical chart, Dr. Tollefsrud wrote: “[L]ump on buttock. [Jocelyn] [h]as had small lump on left buttock which had been unchanged, now has gotten larger. Also with redness in left perianal area. No diarrhea sometimes seems to be tender when wiping, other times doesn’t bother her.” Dr. Tollefsrud also included the following observations in Jocelyn’s medical chart: “[L]eft perianal eythmea, mass palpitated, approximately 4 cm. diameter extending to buttock. Non-tender.”

Following Jocelyn’s 1-year well-baby check, Dr. Tollefsrud promptly scheduled an appointment for Jocelyn with Dr. Marie Schroeder, a pediatrician at the Affiliated Community Medical Center in Willmar. Dr. Schroeder examined Jocelyn and Jocelyn was subsequently referred to Dr. Robert Acton, a pediatric surgeon at the University of Minnesota Hospitals. Dr. Schroeder made this referral because she was concerned that the lump could be a malignant tumor. Dr. Brenda Weigel — a pediatric oncologist at the University of Minnesota — subsequently confirmed that the lump was cancerous.

Approximately 1 week later, Dr. Weigel diagnosed Jocelyn with alveolar rhabdo-myosarcoma (ARS), a rare and aggressive childhood cancer.3 Dr. Weigel concluded that Jocelyn’s cancer was at stage IV and had metastasized. Following Dr. Weigel’s diagnosis, Jocelyn began an intense regimen of chemotherapy, followed by surgery and radiation therapy. Physicians at the Memorial Sloan — Kettering Cancer Center in New York City — who performed the surgery removing Jocelyn’s tumor— agreed that Jocelyn had ARS, but diagnosed the cancer at stage III.4

*326On April 6, 2009, Joseph and Kayla Dickhoff commenced this medical malpractice action against the appellants on Jocelyn’s behalf. The Dickhoffs allege that the appellants negligently failed to timely diagnose Jocelyn’s cancer or refer her to a specialist for diagnosis and treatment. They allege that Jocelyn’s cancer was “curable” if timely diagnosed, but now Jocelyn’s cancer most likely is fatal. The Dickhoffs claim that the appellants’ negligence caused Jocelyn to suffer “injuries to her body which are permanent and/or fatal, and [Jocelyn] has incurred and will incur in the future, medical and other related expenses, pain, disability and disfigurement.” The Dickhoffs also claim that the appellants’ negligence caused Jocelyn to suffer loss of enjoyment of life and diminution of her earning capacity.

In support of their medical malpractice action, the Dickhoffs presented the expert opinions of Dr. James Gelbmann and Dr. Edwin Forman, pursuant to Minn.Stat. § 145.682 (2012).5 The proffered testimony of Dr. Gelbmann, a family physician practicing at the Brainerd Medical Center, was that Dr. Tollefsrud deviated from the accepted standard of care for family practice physicians in Minnesota. The proffered testimony of Dr. Forman, a pediatric hematology and oncology physician, was on causation. In Dr. Forman’s proffered testimony he stated his conclusion that Dr. Tollefsrud’s failure to diagnose Jocelyn’s cancer resulted in a delay in treatment that made it probable that Jocelyn will not survive her cancer. More specifically, Dr. Forman, in his signed affidavits, indicated that he would testify as follows:

Based upon the changes which occurred prior to the correct diagnosis and the extent of metastasis, it is my opinion that the [ARS] was not metastatic when its symptom was first observed by Jocelyn’s mother when Jocelyn was neonate. If this diagnosis had occurred at or shortly after the bump was noticed when Jocelyn was a neonate, more likely than not, Jocelyn’s [ARS] would have been curable. Unfortunately, Jocelyn’s disease is at Stage III/IV, and, more likely than not, she will not survive her disease.

Dr. Forman also indicated in his affidavits that he would further testify that, based on the progression of the cancer prior to the correct diagnosis and the extent of metastasis, Jocelyn’s chance of survival was only 40 percent. Dr. Forman asserts that even though the overall survival rate for ARS is 60 percent, Jocelyn’s chances of survival if the cancer had been timely diagnosed and treated “would have been much higher than 60 percent” because the capacity to develop distant metastases — the hallmark of stage IV ARS— “probably is not in the biology of her particular cancer.”

The appellants’ response to the proffered expert testimony was a complete denial that they were negligent, that they deviated from any accepted standard of medical practice, or that “any act or omission on their part caused or contributed to cause damage” to Jocelyn or the Dick-hoffs. A jury trial was scheduled for May *32710, 2010. On April 15, 2010, the district court ruled that the Dickhoffs could not recover any general or special damages for Jocelyn’s past medical expenses. The Dickhoffs conceded that Jocelyn would have received essentially the same treatments — chemotherapy, surgery, and radiation — even in the absence of the appellants’ negligence. Following the ruling, the Dickhoffs continued to seek damages for Jocelyn’s future medical expenses and the additional pain and suffering that Jocelyn will experience because of those future treatments. As trial approached, the Dickhoffs requested that the court modify Minnesota’s pattern jury instruction for future damages for bodily and mental harm by deleting the word “embarrassment” and inserting the phrase “deprivation of normal life expectancy” so Jocelyn could recover damages for the shortening of her life. See 4A Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Civil, CIVJIG 91.25 (5th ed.2006).

The appellants filed several motions in limine, including a motion that sought to preclude the Dickhoffs’ claim of damages for the deprivation of Jocelyn’s normal life expectancy as an impermissible “loss of chance” claim. Shortly thereafter, Jocelyn’s cancer recurred. On May 7, 2010, the district court continued the trial, in part because “the medical condition of the child [Jocelyn] is evolving and recently her condition has deteriorated significantly.” The court subsequently rescheduled the trial.

Before the rescheduled trial date, the appellants filed a motion to dismiss the Dickhoffs’ medical malpractice action. In that motion, the appellants asserted that the Dickhoffs’ claim of damages for the shortening of Jocelyn’s life expectancy was a prohibited “loss of chance” claim. The appellants also asserted that the Dickhoffs’ claim of damages for future medical expenses based on the recurrence of Jocelyn’s cancer should be dismissed because the Dickhoffs’ proof of causation failed as a matter of law.

The Dickhoffs treated the appellants’ “motion to dismiss” as a motion for summary judgment and submitted a supplemental affidavit on causation from Dr. Forman. In that supplemental affidavit, Dr. Forman explained that he had reviewed the medical records regarding the recurrence of Jocelyn’s cancer. Based on this review of Jocelyn’s medical records, Dr. Forman concluded:

If Jocelyn Dickhoffs rhabdomyosarco-ma had been timely diagnosed and treated, it is unlikely that she would have suffered the 2010 recurrence, required the subsequent medical care and potential additional care in the future. In other words, it is [the appellants’] failure to timely diagnose and treat Jocelyn Dickhoffs rhabdomyosarcoma that changed the likelihood of recurrence and need for additional care from unlikely to probable. It is impossible to put precise statistics on the circumstances with or without timely care. It is without question, however, based on my expertise, that it was the failure to provide timely care and treatment in this case that is to blame for the recurrence and recent need for medical care.

The district court granted the appellants’ motion. The court concluded that the Dickhoffs’ claim for Jocelyn’s “reduced life expectancy and increased risk of recurrence” was essentially “a claim for loss of chance of life” that was foreclosed by our court’s prior case law. The district court also dismissed the Dickhoffs’ claim for medical expenses based on the cancer’s recurrence, concluding that the Dick-hoffs failed to present sufficient expert testimony showing that “it is more proba*328ble than not that the [appellants’] alleged negligence is the cause of [the Dickhoffs’] damages, as opposed to the chance of recurrence already present absent the [appellants’] alleged negligence.”

The Dickhoffs appealed, and the court of appeals reversed. The court of appeals held that our decision in Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993), rejected only “reduced chance” — defined as a “mere reduction in chance of survival” — as a theory of recovery. Dickhoff v. Green, 811 N.W.2d 109, 113-14 (Minn.App.2012). The court of appeals concluded that a “patient states a malpractice claim based on a failure to diagnose if the misdiagnosis makes it more probable than not that [the patient] will not survive her cancer,” even if “a physician’s contribution to an already bleak prognosis is not large but just enough to make death most likely.” Id. at 114. The court of appeals held that the district court erred by granting summary judgment to the appellants because the Dickhoffs’ claim was not foreclosed under Minnesota law. Id. at 115.

The court of appeals also held that the district court erred when it dismissed the Dickhoffs’ claim for Jocelyn’s recurrence-related medical expenses. Id. In reaching that holding, the court of appeals concluded that Dr. Forman’s affidavits supported the Dickhoffs’ claim that the appellants’ negligence “raised the likelihood of [Jocelyn’s] cancer’s recurrence and her need for additional care from unlikely to probable,” and therefore “a jury could also find that it is more probable than not that the recurrence was caused by Dr. Tollefsrud’s negligence.” Id. We granted the appellants’ petition for further review.

I.

As a preliminary matter, we must determine the appropriate standard of review. To do so, we need to ascertain the precise nature of the district court’s order. The motion submitted by the appellants, while labeled a “motion to dismiss,” cited no Minnesota Rule of Civil Procedure. The Dickhoffs responded to the motion as if it were one for summary judgment. In ruling on the appellants’ “motion to dismiss,” the district court relied on information outside the pleadings— specifically, Dr. Forman’s affidavits. When the parties present matters outside the pleadings and those matters are not excluded by the district court, we treat the court’s order as one for summary judgment. See Minn. R. Civ. P. 12.02 (“If, on a motion asserting the defense that the pleading fails to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment....”); Antone v. Mirviss, 720 N.W.2d 331, 334 n. 4 (Minn.2006) (reviewing a district court’s decision to grant the defendant’s motion to dismiss under a summary judgment standard of review because the parties presented, and the court did not exclude, affidavits in support of their positions). Based on our case law and the record in this case, we conclude that the summary judgment standard of review is the appropriate standard to apply.

Our rules of civil procedure provide that summary judgment shall be granted only when the evidence “show[s] that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary judgment, we review de novo “(1) whether there are any genuine issues of material fact; and (2) whether the lower courts erred in their application of the law.” Schafer v. JLC Food Sys., Inc., 695 N.W.2d 570, 573 (Minn.2005). We examine the evidence in the light most favorable *329to the party against whom summary judgment was granted. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.2002).

II.

The next question presented by this case is whether the district court erred by ruling that the Dickhoffs’ claim of damages for Jocelyn’s reduced life expectancy is a claim for “loss of chance” that is prohibited under Minnesota law. To establish a prima facie case of medical malpractice, a plaintiff must prove, on the basis of expert medical testimony, “(1) the standard of care recognized by the medical community as applicable to the particular defendant’s conduct, (2) that the defendant in fact departed from that standard, and (8) that the defendant’s departure from the standard was a direct cause of [the patient’s] injuries.” Plutshack v. Univ. of Minn. Hosps., 316 N.W.2d 1, 5 (Minn.1982). In this case, causation and damages — essential elements of every medical malpractice action — are both contested on appeal.

Here, the Dickhoffs seek two forms of damages. First, the Dickhoffs seek damages for the additional medical expenses that they incurred based on the recurrence of Jocelyn’s cancer, as well as damages for pain and suffering that Jocelyn experienced because of treatments she received for the recurrence of her cancer. The appellants concede that, if the Dickhoffs have satisfied their burden to establish a prima face case of causation, then damages for Jocelyn’s recurrence-related medical expenses are potentially recoverable.6

Second, the Dickhoffs contend — based on expert medical testimony — that Jocelyn had at least a 60 percent chance of recovery or survival if the cancer had been diagnosed at or soon after Jocelyn’s first well-baby check. They further contend that Dr. Tollefsrud negligently failed to render a diagnosis and that her failure to do so reduced Jocelyn’s chance of recovery or survival to no better than 40 percent. In other words, the Dickhoffs’ claim that Dr. Tollefsrud’s negligence caused an increased risk that Jocelyn’s cancer would recur and decreased the probability of her long-term survival. However, the appellants contend that an increased risk of recurrence of cancer and a corresponding reduction in the probability of a patient’s chances of survival are not compensable injuries under Minnesota law. The appellants argue that when a particular type of injury is not compensable as a matter of law, the evidence supporting that type of injury is not material. In the appellants’ view, the district court correctly ruled that the Dickhoffs are seeking to recover damages for loss of chance and that “a claim for loss of chance of life is prohibited as a matter of law in Minnesota.”

Under the loss of chance doctrine, a patient may recover damages when a physician’s negligence causes the patient to lose a chance of recovery or survival. See Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819, 823 (2008); Dan B. Dobbs et al., The Law of Torts § 196, at 661-62 (2d ed.2011). The fundamental principle underlying the loss of chance doctrine is that “the plaintiffs chance of survival itself has value.” Dobbs et al., supra, § 196, at 664. In a loss of chance case, the plaintiff must sustain the burden of proving that “the defendant negligently deprived her of a chance of a better outcome.” Id. at 664 (footnote *330omitted). Assuming that the plaintiff satisfies that burden, then “the defendant should be liable for the value of the chance he has negligently destroyed.” Id.

The Dickhoffs resist the notion that their medical malpractice claim is premised on the “loss of chance” doctrine by framing the injury allegedly caused by Dr. Tollefsrud’s negligence in terms of a “cure.” In their principal brief, they repeatedly assert that Dr. Tollefsrud’s negligent failure to diagnose Jocelyn’s cancer “deprived” Jocelyn of a cure by “al-lowfing] the cancer to grow to an advanced stage [such] that it is no longer curable.” However, we conclude that the Dickhoffs’ claim that Dr. Tollefsrud’s negligence “deprived” Jocelyn of a “cure” appears simply to be a way of alleging “loss of chance” without using those particular words. Otherwise, it is difficult to ascertain the nature of the injury that the Dickhoffs attribute to Dr. Tollefsrud’s negligence.7 Indeed, the Dickhoffs have conceded that their proof of causation failed with respect to Jocelyn’s past medical expenses — that is, expenses Jocelyn incurred during her initial treatment for cancer and any pain and suffering associated with that course of treatment. In essence, the Dickhoffs acknowledge that Jocelyn would have received essentially the same treatment protocol of chemotherapy, surgery, and radiation in the absence of the appellants’ alleged negligence. Accordingly, the injury that lies at the heart of the Dickhoffs’ medical malpractice action is a claim that Dr. Tollefs-rud’s alleged negligence increased the risk that Jocelyn’s cancer would recur and decreased her chances of survival — an archetypal loss of chance claim in a failure-to-diagnose cancer case.8 See Herskovits v. Grp. Health Coop. of Puget Sound, 99 Wash.2d 609, 664 P.2d 474, 481 (1983) (Pearson, J., concurring).

A.

Given the foregoing analysis, it becomes evident that we must next determine whether a medical malpractice claim alleging loss of chance is cognizable in Minnesota. The appellants assert that in Fabio we *331conclusively rejected the “loss of chance” doctrine as a theory of tort recovery. See Fabio v. Bellomo, 504 N.W.2d 758, 762-68 (Minn.1993).9 Both the district court and the court of appeals agreed with the appellants’ assertion. Therefore, we need to examine Fabio in some detail to determine whether we have previously held, as a matter of law, that a claim for “loss of chance” is prohibited in Minnesota.

In Fabio, the plaintiff, Delores Fabio, alleged that her primary care physician negligently failed to diagnose her breast cancer. 504 N.W.2d at 760-61. Fabio claimed that on at least two occasions her primary care physician “noticed a lump in her left breast, but told her not to worry about it because it was a ‘fibrous mass.’ ” Id. at 760. After her physician retired from the practice of medicine, Fabio discovered that the lump in her breast was cancerous and had metastasized. Id. Fa-bio sued the physician for medical malpractice, claiming that he was negligent for failing “to palpate the lump or order a mammogram when he noticed [the lump].” Id. Fabio argued, among other things, that she suffered a compensable legal injury because her physician’s failure to timely diagnose her breast cancer “resulted in a ‘loss of chance’ of life expectancy and a greater risk of recurrence of cancer.” Id. at 761. The district court granted summary judgment in favor of the physician. Id.

On appeal, we considered “whether Fa-bio [had] put forth sufficient evidence of causation and damages against [her physician] for his alleged malpractice.” Id. We concluded that Fabio had failed to establish that it was “more probable than not” that her physician’s negligence caused her to suffer any injury, and therefore we affirmed the district court’s decision to grant summary judgment to the physician. Id. at 762-68. In doing so, we also declined to allow Fabio’s loss of chance claim to proceed, stating:

Fabio’s second theory of recovery is for “loss of chance.” She argues that her increased chance of recurrence of cancer and her decreased chance of living another 20 years are compensable injuries. 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 (emphasis added).

We acknowledge that our discussion of the “loss of chance” doctrine in Fabio intimated that we were rejecting “loss of chance” as a theory of tort recovery. Nevertheless, the appellants and the district court read our decision in Fabio too broadly. At best, we offered two alternative justifications for the holding in Fabio: (1) we declined to recognize loss of chance “in this case ” and (2) we concluded that Fabio had not presented sufficient evidence of causation to make out a loss of chance claim. Neither justification was necessary to our decision in Fabio, which renders our discussion on whether a loss of chance claim is ever cognizable in Minnesota — to the extent Fabio even discussed loss of chance outside of the facts of that case— *332mere dictum.10 See Curtis v. Altria Grp., Inc., 813 N.W.2d 891, 901 n. 6 (Minn.2012) (“[A] decision by the court ... on one argument renders a decision on the other argument dictum.”); see also MacRae v. Grp. Health Plan, Inc., 753 N.W.2d 711, 719 (Minn.2008) (noting that a statement that is not necessary to the holding in a case is not binding precedent). Moreover, while we declined to recognize the loss of chance doctrine based on the facts of Fa-bio, we did not foreclose the possibility that we would revisit that question in an appropriate case. Cf. Smith v. Brutger Cos., 569 N.W.2d 408, 414 (Minn.1997) (declining to recognize the tort of negligent misrepresentation involving the risk of physical harm based on the facts of the case, but without foreclosing the future possibility of recognizing that tort). Accordingly, we conclude that our perfunctory treatment of the loss of chance doctrine in Fabio is not controlling, and whether we should recognize the loss of chance claim at issue in this case is an unresolved question of law that we must now address.11

*333B.

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.

The loss of chance doctrine developed in response to a problem that is particularly acute in the medical malpractice context, especially in the case of a physician who fails to provide a timely diagnosis or treatment of a disease. See Matsuyama, 890 N.E.2d at 884-35 (citing Restatement (Third) of Torts: Liability for Physical Harm § 26 cmt. n (Proposed Final Draft No. 1, 2005) (Draft Restatement)); Dobbs et al., supra, § 196, at 661-62. We have recognized that in such a situation, the plaintiff does not claim that “the disease itself ... was caused by the physician,” but that the “physician’s delay resulted in harm that could have been prevented.” Leubner v. Sterner, 498 N.W.2d 119, 122 (Minn.1992). It is that harm to the chance of survival that a plaintiff seeks to recover in a loss of chance case.

Under traditional principles of tort causation, a plaintiff is required to prove that it is “more probable than not” that the harm resulted from the physician’s negligence as opposed to the preexisting condition. Id. at 121. If a plaintiff meets that burden of proof, she recovers 100 percent of her damages. See Tarnowski v. Resop, 236 Minn. 33, 38-39, 51 N.W.2d 801, 804 (1952) (explaining that “[t]he general rule with respect to damages for a tortious act is that the wrongdoer is answerable for all the injurious consequences of his tortious act” (citation omitted) (internal quotation marks omitted)). Conversely, a plaintiff recovers nothing if she is unable to establish that the physician’s negligence “more probably] than not” caused the harm. See Leubner, 493 N.W.2d at 121. Under that “all or nothing” rule, a patient whose pre-negligence odds of survival were 50 percent or lower can never establish, as a matter of law, that an alleged faulty diagnosis “more likely than not” was the cause of the patient’s injury. See generally Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1363-70 (1981) (criticizing the arbitrariness of the traditional all or nothing approach to tort causation).

The “all or nothing” approach to causation has been questioned on the grounds that it undermines the fundamental aims of tort law, including compensation for victims of medical negligence and the deterrence of unsafe conduct by health care providers. See Herskovits, 664 P.2d at 486-87 (Pearson, J., concurring). The “all or nothing” approach also fails to recognize the common sense proposition that a loss of chance of survival or recovery does injure a person. Indeed, the all or nothing rule “ ‘fails to deter’ medical negligence because it immunizes ‘whole areas of medical practice from liability.’ ” See, e.g., Matsuyama, 890 N.E.2d at 830 (quoting McMackin v. Johnson Cnty. Healthcare Ctr., 73 P.3d 1094, 1099 (Wyo.2003)); see also King, supra, at 1377-78 (describing how the all or nothing approach to causation subverts the compensatory, risk spreading, and deterrence objectives of tort law); cf. Restatement (Second) of Torts § 901 (1979) (listing the purposes for awarding tort damages, including deterrence).

By contrast, the “loss of chance” doctrine recognizes that a patient values her chances of recovery or survival and she 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 *334of the physician’s negligence. See Matsuyama, 890 N.E.2d at 823; see also Murrey v. United States, 73 F.3d 1448, 1453-54 (7th Cir.1996) (Posner, C.J.) (“A loss is a loss even if it is only probable, as are most things in life.”). As one distinguished torts scholar has observed, when a physician negligently misses a diagnosis of a patient’s cancer, it is clear that, “ex ante, no patient would be indifferent to that loss of opportunity, which is why good physicians command high fees for good diagnosis.” Richard A. Epstein, Torts 252 (1999).

Because the doctrinal underpinnings of the loss of chance doctrine have proved to be fundamentally sound, a growing number of jurisdictions have adopted some form of the doctrine, albeit with divergent rationales.12 Some jurisdictions that have endorsed the loss of chance doctrine have done so by relaxing the plaintiffs burden on causation. See Delaney v. Cade, 255 Kan. 199, 873 P.2d 175, 185-86 (1994) (adopting a “relaxed” causation approach to loss of chance claims); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 475 (Okla.1987); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284-85 (1978). Other jurisdictions view the reduction in the likelihood of a better outcome — i.e., the “lost chance” — as a compensable injury in and of itself. See, e.g., Alexander v. Scheid, 726 N.E.2d 272, 279 (Ind.2000); Matsuyama, 890 N.E.2d at 832; Lord v. Lovett, 146 N.H. 232, 770 A.2d 1103, 1105-06 (2001); Alberts v. Schultz, 126 N.M. 807, 975 P.2d 1279, 1284-85 (1999).

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. It should be beyond dispute that a patient regards a chance to survive or achieve a more favorable medical outcome as something of value. See Murrey, 73 F.3d at 1454; Dobbs et al., supra, § 196, at 664. We agree with the Supreme Judicial Court of Massachusetts: “When a physician’s negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real injury. The patient has lost something of great value: a chance to survive, to be cured, or otherwise to achieve a more favorable medical outcome.” Matsuyama, 890 N.E.2d at 832; see also Lord, 770 A.2d at 1105-06; Epstein, supra, at 253. Accordingly, we conclude that a physician harms a patient by negligently depriving her of a chance of recovery or survival and should be liable for the value of that lost chance.13

The longstanding proof problem associated with loss of chance claims was that it was difficult, if not impossible, to prove causation for a loss of chance injury. In that sense, we are not recognizing a *335new injury as such. Rather, we are recognizing that an injury that has always existed is now capable of being proven to a reasonable degree of certainty. See Matsuyama, 890 N.E.2d at 884 (explaining that “medical science has progressed to the point that physicians can gauge a patient’s chances of survival to a reasonable degree of medical certainty, and indeed routinely use such statistics as a tool of medicine”). As a result, the reliability of the evidence that victims of medical malpractice are able to marshal when a physician’s negligence reduces a patient’s chance of recovery or survival has dramatically improved in recent years — now making it possible to prove causation in a loss of chance case. Id. at 884-35. Indeed, in light of modern medical science, allowing a patient to recover damages for a lost chance of recovery or survival is no more abstract, speculative, or hypothetical than allowing the jury to determine damages for the loss of a victim’s earning capacity throughout his or her lifetime — an inquiry that courts and juries routinely undertake, and that our court has long endorsed.14 See, e.g., Berg v. Gunderson, 275 Minn. 420, 428-29, 147 N.W.2d 695, 701 (1966) (permitting recovery of damages for permanent impairment or loss of earning capacity); see also DePass v. United States, 721 F.2d 203, 207 (7th Cir.1983) (Posner, J., dissenting) (explaining that probabilities that are derived from statistical studies are just as reliable as other categories of evidence in personal injury cases).

C.

In considering the loss of chance doctrine, we “would be remiss if we did not at least provide some minimal guidance with respect to the measure of damages in such a case.” McMackin, 73 P.3d at 1100. The first step in a loss of chance case is to measure the chance lost. Put differently, “loss of chance damages are measured as ‘the percentage probability by which the defendant’s tortious conduct diminished the likelihood of achieving some more favorable outcome.’ ” Matsuyama, 890 N.E.2d at 839 (quoting King, supra, at 1382). Assessing loss of chance damages necessarily depends, to a certain extent, on the available medical evidence. Id. at 838-39. In this case, based on Dr. Forman’s expert medical opinion, the relevant medical standard to measure loss of chance is the 5-year survival rate for ARS.

The second step is to value the lost chance. Those jurisdictions that have recognized loss of chance as a distinct and compensable injury have tended to adopt the proportional-recovery approach. See, e.g., Cahoon v. Cummings, 734 N.E.2d 535, 540-41 (Ind.2000) (concluding that the “better approach” to damages in a loss of chance case is proportional recovery). Under the proportional-recovery rule, damages for the patient’s injury or death are discounted by the value of the chance that the physician’s negligence destroyed. See id.; Dobbs et al., supra, § 196, at 66-67. Such an approach to damages is the most “equitable method of apportioning damages consistent with the degree of fault attributable to the health care provider,” Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480, 484 (1996), and minimizes the risk *336that the health care provider is “assessed damages for harm that he did not cause,” Matsuyama, 890 N.E.2d at 840. We agree with those jurisdictions that have adopted the proportional-recovery approach to damages in loss of chance cases. Accordingly, under our view of the loss of chance doctrine, 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.15 See, e.g., Mead v. Adrian, 670 N.W.2d 174, 188 (Iowa 2003) (Cady, J., concurring specially) (explaining the proportional-recovery rule).

This case, of course, is different. Jocelyn’s cancer has recurred and her death is very likely, but not certain. Fortunately, Jocelyn is still alive at the time of this appeal. Because this is not a death case at this point in time, the appropriate baseline to determine loss of chance damages for Jocelyn’s injury is not the total amount of damages allowable for death. Rather, the appropriate measure of damages is the value of the reduction of the plaintiffs life expectancy from her pre-negligence life expectancy. See Alexander, 726 N.E.2d at 282-83 (recognizing decrease in life expectancy itself as a com-pensable injury when the physician failed to diagnose cancer); see also James v. United States, 483 F.Supp. 581, 587 (N.D.Cal.1980); United States v. Anderson, 669 A.2d 73, 78 (Del.1995) (allowing recovery for shortened life expectancy as a result of increased risk of death from a physician’s alleged failure to timely diagnose testicular cancer). In other words, assuming the fact-finder concludes that the appellants’ negligence reduced Jocelyn’s life expectancy, the fact-finder must determine the amount of damages necessary to compensate Jocelyn for that reduction in life expectancy. While we recognize that this task is not easy, it is the type of duty that courts routinely delegate to juries in personal injury cases.16 See Alexander, 726 N.E.2d at 283 (explaining that “[vjaluing a determinable number of years of life is no more challenging than” awarding damages for other injuries that are “not readily calculable”); DePass, 721 F.2d at 209 (Posner, J., dissenting) (arguing that statistical evidence of a reduction in life expectancy “provides a perfectly objective basis for awarding damages”).

In sum, we are confident that, properly understood, recognizing loss of chance as a compensable injury in medical malpractice cases will advance, not undermine, the fundamental purposes of tort law: deterrence and compensation. See, e.g., Fletan v. Gaines, 494 N.W.2d 38, 42 (Minn.1992) (explaining that “[t]ort liability seeks to compensate the injured and to deter wrongdoing”). For the foregoing *337reasons, we conclude that Minnesota law permits a patient to recover damages when a physician’s negligence diminishes or destroys a patient’s chance of recovery or survival. Therefore, we hold that the district court erred when it dismissed Jocelyn’s medical malpractice action on the ground that the Dickhoffs’ claim was prohibited under Minnesota law.

III.

Having concluded that the Dick-hoffs are advancing a “loss of chance” claim — a claim that is cognizable in Minnesota — we must now consider whether the district court was nevertheless correct in ruling that the Dickhoffs’ expert medical testimony failed, as a matter of law, to establish a prima facie case of causation.

To establish a prima facie case of medical malpractice, we have consistently held that “a plaintiff must prove, among other things, that it is more probable than not that his or her injury was a result of the defendant health care provider’s negligence.” Leubner, 493 N.W.2d at 121. We conclude that the Dickhoffs have created a genuine issue of material fact on the issue of causation, and therefore the district court erred by granting summary judgment in favor of the appellants.

Under our view of the loss of chance doctrine, a 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. See Lord, 770 A.2d at 1107; Dobbs et al., § 196, at 666. Therefore, our approach to the loss of chance doctrine is consistent with our enduring approach to causation in medical malpractice cases. For that reason, we reject the court of appeals’ suggestion that a medical malpractice plaintiff establishes a prima facie case of causation by demonstrating that physician error, no matter how slight, dropped the odds of the plaintiffs survival below a 50 percent threshold. The court of appeals, relying on dicta from our decision in MacRae, held that “the Dickhoffs must prove only that Jocelyn’s chances of death from her cancer moved from unlikely to likely.” Dickhoff, 811 N.W.2d at 115. 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. Such a rule also is inconsistent with our repeated exhortation that a plaintiff must prove that the defendant health care provider’s negligence more likely than not caused the claimed injury. Leubner, 493 N.W.2d at 121; Smith v. Knowles, 281 N.W.2d 653, 656 (Minn.1979).

In this case, we conclude that Dr. For-man’s affidavits are sufficient to create a genuine issue of material fact on causation. Dr. Forman asserts that Dr. Tollefsrud’s failure to timely diagnose Jocelyn’s cancer caused a substantial increase in the likelihood that Jocelyn’s cancer would recur and decreased her chances of survival by at least 20 percent, and he bases his conclusion on an analysis of the particular characteristics of Jocelyn’s cancer and its progression. In other words, the Dickhoffs have produced evidence establishing that Jocelyn’s prospects for achieving a more favorable outcome, as measured in terms of her likelihood of surviving for a number of years under the relevant medical standard — the 5 — year survival rate for ARS— were reduced by Dr. Tollefsrud’s negligence. In addition, Dr. Forman’s affida*338vits state that the delay in diagnosis caused Jocelyn to undergo additional medical treatments based on the recurrence of her cancer that she would not have otherwise undergone.17

Accordingly, we conclude that the Dick-hoffs have produced admissible testimony that shows it is more probable than not that Jocelyn’s injury — the loss of chance of survival — was a result of Dr. Tollefsrud’s negligence. Because the Dickhoffs have created a genuine issue of material fact on the issue of causation, we hold that the district court erred by granting summary judgment in favor of the appellants.

Affirmed.

ANDERSON, G. BARRYand WRIGHT, JJ., took no part in the consideration or decision of this case.

. Dr. Rachel Green changed her surname to Tollefsrud while the action by the Dickhoffs was pending. We will refer to her as Dr. Tollefsrud in this opinion.

. The Family Practice Medical Center is a *325multi-physician clinic that provides a full range of medical services to patients in west-central Minnesota, including continuous inpatient and outpatient care. Each physician at the Family Practice Medical Center is a board-certified family practice specialist.

. "ARS” is an aggressive type of rhabdomyo-sarcoma — a cancer of soft tissue (such as muscle) — that typically manifests "in the arms or legs, chest, abdomen, genital organs, or anal area.” Childhood Rhabdomyosarcoma Treatment, Nat'l Cancer Inst., http://www. cancer.gov/cancertopics/pdq/treatmen1/ chil-drhabdomyosarcoma/Patient/pagel (last modified April 2, 2013).

. At the time of the surgeiy, Jocelyn's treatment protocol called for a type of radiation therapy known as "brachytherapy,” which involves the surgical insertion of rods that contain radioactive beads. The surgeon who *326places the rods is also the surgeon who needs to prepare the area where those rods will be placed. Memorial Sloan-Kettering was the only hospital in the United States that could insert the rods in a child under 2 years of age at the time of Jocelyn’s diagnosis. As a result, the surgery removing Jocelyn’s tumor was performed at Memorial Sloan-Kettering.

. Minnesota Statutes § 145.682 provides that a plaintiff in a medical malpractice action must produce an expert affidavit that expresses opinions that establish that the defendant deviated from the standard of care and caused injury to the plaintiff. Id., subd. 3.

. We address this damages issue — whether the district court erred by dismissing the Dickhoffs’ claim for damages arising from the recurrence of Jocelyn’s cancer — in Part III, below.

. The Dickhoffs also assert that their claim is not premised on the "loss of chance” doctrine because the probability that Jocelyn would survive in the absence of Dr. Tollefsrud’s negligence was greater than 50 percent. That assertion has some persuasive value given that the loss of chance doctrine generally arises in cases in which the plaintiff's pre-negligence odds of survival are less than 50 percent. Nevertheless, the mere fact that Jocelyn had a better-than-even chance of surviving her cancer does not take her case outside the purview of the “loss of chance” doctrine. See Renzi v. Paredes, 452 Mass. 38, 890 N.E.2d 806, 809 (2008) (holding that recovery for loss of chance of survival is appropriate when the physician's breach of duty destroyed or diminished the patient’s pre-negligence chance of survival to less than even, regardless of whether that pre-negligence chance was better than even or less than even).

. The dissent contends that our decision is unwarranted because the Dickhoffs "explicitly disavow a loss of chance theory." Yet the court unanimously agrees that the Dickhoffs have presented a "quintessential Toss of chance' claim.” Indeed, the appellants have argued before the district court, the court of appeals, and our court that the Dickhoffs cannot recover damages for loss of chance. 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. And while the Dickhoffs have argued that their claim is not premised on the loss of chance doctrine, the Dickhoffs have always maintained that Minnesota law supports their claim for damages. Thus, the issue is squarely presented for our consideration. See Rickert v. State, 795 N.W.2d 236, 240-41 n. 2 (Minn.2011) (stating that "[bjecause the ... issue is squarely presented by one party, and not conceded by the other party, our consideration of the issue is not improper”).

. The court of appeals held that our decision in Fabio rejected the "loss of chance” doctrine, but relied on our decision in MacRae v. Group Health Plan, Inc., 753 N.W.2d 711 (Minn.2008), to conclude that a "reduction in chance that drops the prognosis of [the patient’s probability of survival] below 50 percent” — termed an “improbable-survival claim" — was permitted. Dickhoff, 811 N.W.2d at 113-14. The court of appeals distinguished between "reduced-chance ” claims and "improbable survival” claims to "avoid confusion." Id. at 113. We do not find the court of appeals’ terminology useful and will refer to the Dickhoffs’ claim as one for "loss of chance."

. The dissent disagrees with our characterization of the discussion of loss of chance in Fabio as dicta, claiming that we conclusively resolved the question of whether loss of chance is cognizable in Minnesota in that case. We disagree. Our cursory and uncritical discussion of loss of chance in Fabio is dicta at best and is akin to the history of our treatment of the tort of invasion of privacy. More specifically, in Hendiy v. Conner, we acknowledged that Minnesota had never recognized the tort of invasion of privacy, but noted that even if the court were to do so, the defendant’s conduct did not constitute a violation of the plaintiff's privacy. 303 Minn. 317, 319, 226 N.W.2d 921, 923 (1975). Nearly 25 years later, in Lake v. Wal-Mart Stores, Inc., we concluded that whether to recognize the tort of invasion of privacy was a "question of first impression,” stating that “[p]revious cases have addressed the right to privacy torts only tangentially, in dicta.” 582 N.W.2d 231, 233 & n. 1 (Minn.1998) (citing Hendry, 303 Minn. at 319, 226 N.W.2d at 923). Today, no one can credibly assert that our discussion of the tort of invasion of privacy in Hendry was anything other than dicta and the same is true of any discussion of loss of chance in Fabio.

. The dissent also asserts, no fewer than nine times, that we "rejected” the loss of chance doctrine in Leubner v. Sterner. The dissent's assertion lacks merit when first made and repetition does nothing to render that assertion more persuasive or meritorious. First, the dissent selectively quotes from Leub-ner. The dissent quotes the following, for instance, as support for our purported rejection of loss of chance:

Arguably, the injury claimed to be caused is a decreased percentage chance of surviving, whether or not the patient, in fact, has survived. Here the difficulty is perhaps not so much in proving causation as "more probable than not,” but in what appears to be the amorphous and speculative nature of the asserted “injury,” especially as it applies to a particular patient.

Leubner v. Sterner, 493 N.W.2d 119, 121 (Minn.1992). The dissent conveniently omits the next sentence: “In any event, plaintiffs have not asserted such a claim." Id. (emphasis added). The statement relied on by the dissent is therefore, at best, pure dictum.— even under the dissent’s definition of that term — because it went beyond the facts before our court and merely constitutes an expression of the author's opinion. See State ex rel. Foster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (1956).

The dissent’s persistent assertion that we rejected the loss of chance doctrine in Leub-ner is flawed for a second reason. In Leub-ner, we explicitly granted the defendants’ petition for further review on the sole issue of whether Minnesota recognized a cause of action for negligent aggravation of a pre-exist-ing disease. 493 N.W.2d at 120-21. In so doing, we expressly noted that ”[p]laintiffs did not file a notice of review to preserve their 'lost chance of survival claim.’ ” Id. Accordingly, in Leubner we did not even address — much less reject — loss of chance because, to the extent the issue of loss of chance had been raised below, the plaintiffs waived it on appeal. See State v. Koppi, 798 N.W.2d 358, 366 (Minn.2011) (explaining that failure to preserve an issue on appeal results in waiver).

In short, the dissent's attempt to use Leub-ner for the proposition that we rejected the loss of chance doctrine is groundless.

. The highest courts of Arizona, the District of Columbia, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Missouri, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, Wisconsin, and Wyoming have endorsed some form of the loss of chance doctrine over the past three decades. See Matsuyama, 890 N.E.2d at 828 n. 23 (collecting cases). By contrast, the highest courts of Florida, Idaho, Maryland, Mississippi, New Hampshire, Tennessee, Texas, South Carolina, and Vermont have rejected the loss of chance doctrine. Id. at 828-29 n. 23.

. We agree with those courts that require "the lessened degree of recovery resulting from the medical malpractice [to] be more than a token or de minimis amount.” Delaney, 873 P.2d at 186-87. However, we need not, and do not, quantify the outer boundaries of the loss of chance doctrine in this case because, as we discuss more fully below, the Dickhoffs have presented evidence that Dr. Tollefsrud’s negligence reduced Jocelyn's chances of survival from at least 60 percent to 40 percent. Such a reduction, as a matter of law, is neither token nor de minimis.

. The dissent asserts that "the majority’s decision greatly expands the liability of medical professionals." The dissent’s assertion is belied by the fact that nearly half the states have adopted some form of the loss of chance doctrine, and the available empirical evidence establishes that a state’s adoption of the loss of chance doctrine has "no significant impact on either court docket congestion or medical malpractice insurance costs.” Steven R. Koch, Comment, Whose Loss Is It Anyway? Effects of the "Lost-Chance" Doctrine on Civil Litigation and Medical Malpractice Insurance, 88 N.C. L.Rev. 595, 602 (2010).

. For example, assume that a physician negligently fails to diagnose a patient’s cancer. The patient dies. If the patient had only a 40 percent chance of survival before tire medical malpractice, but the physician's negligence reduced her chance of survival to 0 percent, then the physician should be liable for 40 percent of the damages, or the portion of the value that the defendant’s negligence destroyed. See Dobbs et al., supra, § 196, at 666-67. If the fact-finder determines that total damages for the patient's death are $100,000, then the patient’s loss of chance damages would be $40,000.

. As in every medical negligence case, Jocelyn retains the burden of proving damages caused by the defendant by a fair preponderance of the evidence. See Carpenter v. Nelson, 257 Minn. 424, 427, 101 N.W.2d 918, 921 (1960). And, as we have explained many times, in the case of future damages, a plaintiff like Jocelyn at all times retains the burden of proving such damages "to a reasonable certainty.” Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn.1980).

. We recognize that the Dickhoffs still face an uphill battle in proving the existence of the injury and causation. But we simply hold today that plaintiffs like the Dickhoffs should have an opportunity to prove both. Such an opportunity is consistent with our longstanding approach to tort law.