(Concurring specially).
Because I believe that the current state of the law in Minnesota leads inexorably to the result reached by the majority, I concur in that result. But I write separately because I also believe that the majority understates the policy implications of this opinion.
The majority notes, quite rightly, that under circumstances like those presented here, a malpractice claim could in theory be brought decades after a failed diagnosis. Many genetic diseases and conditions “skip” generations.10 Therefore, the effective limitation on a claim based on misdiagnosis of a genetic condition becomes very unclear indeed. What is clear, however, is that short-term “tail” liability-insurance coverage after an event such as retirement will no longer be sufficient to protect the interests of a physician who was in any way involved in genetic testing.
The majority suggests that “the extent and number” of decades-old claims based on failed genetic diagnoses “is rank speculation.” I suggest that the number of such claims that might be made is only a part of the implications of this opinion. I think that the fact that any such claim could be made will cause medical professionals, acting in their rational self-interests, to avoid to the greatest degree possible medical practice likely to involve genetic testing. That clearly is not in the public interest.
This appears to be yet another area in which technology is ahead of the law. The majority also observes that “it is the province of the legislature, not this court, to enact a statute of repose or to take other action to limit the risk to physicians, if that is the desired outcome.” I believe that is an outcome very much to be desired. If the legislature does not act to somehow limit Lability in cases like the one here, it is difficult to see where the next generation of geneticists willing to practice in Minnesota will come from.
. See, e.g., Brian R. Gin, Genetic Discrimination: Huntington’s Disease and the Americans with Disabilities Act, 97 Colum. L.Rev. 1406, 1414 n. 45 (1997) (citing Anthony J.F. Grif-fiths et ah, An Introduction to Genetic Analysis 27-28 (6th ed.1996)); D. Marianne Brow-er Blair, Lifting the Genealogical Veil: A Blueprint for Legislative Reform of the Disclosure of Health-Related Information in Adoption, 70 N.C. L.Rev. 681, 737 n. 291 (1992) (citing Catherine A. Reiser, Basic Principles of Genetics: A Human Approach, in Wisconsin Clinical Genetics Ctr. & Waisman Ctr. on Mental Retardation & Human Development, Genetic Family History: An Aid to Better Health of Adoptive Children 65-66 (1984)).