MINNEAPOLIS, January 31, 2008—On January 30 the MMA, along with the Minnesota Defense Lawyers Association (MDLA), filed an amicus brief with the Minnesota Supreme Court in the case, MacRae v. Group Health Incorporated, et al.

At issue in the current case is this question: Are damages established at the time of misdiagnosis, or at the time that it becomes likely that the patient will not survive?

The plaintiff in the case is the wife of Roderick MacRae. MacRae's leg was biopsied by Michael W. Kelly, M.D., in January of 2001, and the results were misdiagnosed as a non-malignant compound nervus by Amar Subramaniam, M.D.  Both doctors worked for Group Health Incorporated.

In September of 2004, MacRae reported to Kelly that he had swelling and pain in his groin and left leg. A subsequent biopsy revealed the metastic-malignant melanoma. MacRae died of the melanoma in August, 2005, and his wife Margaret MacRae filed suit against Group Health, HealthPartners, Kelly and Subramaniam.

Both the district court and the Minnesota Court of Appeals have held in favor of the defendants, stating that the statute of limitations for a medical malpractice action for alleged misdiagnosis begins at the time of misdiagnosis.

The lower courts based these holdings on two Minnesota Supreme Court opinions, Malloy v. Meier (2004) and Fabio V. Bellomo (1993), which stated that medical malpractice actions based on the failure to diagnose “generally accrue at the time of misdiagnosis, because some damage generally occurs at that time.” The appellant argues that the statute of limitations for a misdiagnosis of a malignancy does not start until it is more likely than not that the patient will die.

The appellant bases this argument on a 1992 Minnesota Supreme Court case, Leubner v. Sterner, which held that “there is generally no medical malpractice cause of action for negligent aggravation of a preexisting condition, and a plaintiff cannot establish that a misdiagnosis decreased the likelihood of survival until there is proof that it is more probable than not that the plaintiff will not survive the cancer.” 

In Minnesota, a wrongful death action based on medical negligence must be brought within three years of the date of death, but not longer than four years from the date of accrual (Minn. Stat. § 573.02, subd. 1; Minn. Stat. § 541.076(b)). Changing the statute of limitations for cases of misdiagnosis to be “the point at which it becomes more likely than not that a patient will die” extends the statute of limitations for when claims may be brought, and makes the point of accrual much less clear.

The MMA and the MDLA are urging the court to reject the appellant’s argument.

The MMA believes that the case is significant because an adverse decision will have a negative effect on physicians and other providers throughout the state. Statutes of limitations serve a useful purpose, protecting providers against claims that have grown stale with the passage of time. The MMA is concerned that overturning the lower court decision will create gray areas in the understanding of time limitations, lengthening providers exposure to lawsuits and doing away with the clarity and predictability that current statutes provide.

Oral arguments for this case have not yet been scheduled.