Ailing 7-year-old girl at center of state Supreme Court ruling dies

A month after 7-year-old Jocelyn Dickhoff became the center of a precedent-setting Minnesota Supreme Court ruling, her family will lay her to rest.

The bubbly first-grader, who was looking forward to second grade and her favorite teacher, died Saturday of a rare cancer that she had fought most of her life, leaving her grieving parents and a Willmar medical clinic to carry on the high-profile legal battle over whether an earlier diagnosis could have saved her.

But over the past couple of weeks, Jocelyn's familywasn't dwelling on legal filings and court rulings. The cancer that had shadowed Jocelyn all her life began to spread again. Jocelyn turned 7 on June 12, but as new tumors spread to her chest and cancer-filled fluid surrounded her heart, the birthday party — complete with manicures and pedicures and a private, advance screening of "Despicable Me 2" — was held on June 28 in her hospital room.

"We had two birthday cakes," said her mom, Kayla. Jocelyn decided to save the ice cream cake with the fudgy, crunch center for a later date, but she died at 3 a.m. Saturday, never getting a piece of her most favorite cake.

Jocelyn was 2 weeks old in 2006 when Kayla and Joe Dickhoff noticed a suspicious lump on their newborn. But it wasn't until Jocelyn was 13 months old that a cancer specialist diagnosed alveolar rhabdomyosarcoma.

Her parents filed suit against a doctor they contend failed to properly diagnose the rare muscular cancer before it spread and reduced the odds of recovery.

While the legal battle took place in the courthouse, Jocelyn fought the cancer. She received 54 weeks of treatment immediately after being diagnosed and then led a "pretty normal life" for about 1½ years. But for most of her seven years, Jocelyn was far too accustomed to hospital rooms, radiation and chemotherapy, surgeries and ER visits.

In those short years, the energetic little girl who had a way of making it clear whether she liked someone, loved playing at day care and spending hours on her back-yard swing set: swinging, sliding, being the master of "her ship" and making her way across the monkey bars.

"Last year she would make it to two or three rungs and then she would drop to the ground," her mom said. "It kind of scared me because I always thought she would break an ankle because of all the chemo. But this year, Jocelyn called out: 'Mom, watch me. I can do this all by myself.' "

But cancer and its side effects took its toll.

"Just a month ago, I was brushing her hair in the morning and it kept falling out. I said, 'Jocelyn, I'm sorry. I don't know why this is happening now.' And Jocelyn said, 'I am on chemo.' I said, 'Of course. Silly me.' "

Jocelyn rarely complained about her treatments or the pain, except maybe when the migraine headaches got severe.

It isn't likely she knew she was the center of a legal battle that led to a state high court ruling that could redefine the rights of patients to recover damages from medical professionals. An attorney for the Dickhoff family said Monday he expects to press the lawsuit despite her death. Only now, the case will be pursued as a wrongful death case — and the question will be whether any delay in Dickhoff's diagnosis ultimately contributed to her death, said attorney Phillip Cole.

"Its no longer a lawsuit of chance," Cole said.

"If we show the error in diagnosis by the physician played a substantial part in bringing about Jocelyn's death from this cancer, then her family is entitled to damages."

Her death will make the jury's task less complicated, said Peter Knapp, a professor at the William Mitchell College of Law. A suit over the loss of a chance would have been "a difficult one to try and complicated to resolve for the jury," Knapp said.

Opposing attorneys say the Supreme Court's groundbreaking ruling, which allows lawsuits based on the "loss of chance" for medical treatment is an example of judicial overreach that could have devastating ramifications on doctors through increased medical malpractice claims.

"It's a tragedy. It's always been a tragedy, the fact that she was stricken with cancer," said William Hart, an attorney representing the doctor, Rachel Tollefsrud, and the Family Practice Medical Center of Willmar.

"It's tragic and we have to set aside all of the little legal parts of this and just feel for the family."

The possibility of Jocelyn's death always seemed to be the "elephant in the room," her mom said.

It wasn't something they talked about or dwelled on, she said. But as the tumors grew and the cancer spread, and Jocelyn said no to more radiation.

" 'I don't want to do it anymore,' " she told her parents.

"She was very, very tired."

mlsmith@startribune • 612-673-4788 jeremy.olson@startribune.com • 612-673-7744