Malpractice Cases: Make Sure You Know What You Are Doing

malpracticelawsuitfailsI’ve previously written about my concerns of courts letting procedure prevail over substance in personal injury cases – usually in favor of the defendant. Last week, the Minnesota Court of Appeals handed down a case that underscores this problem in Bothun v. Martin LM, a medical malpractice lawsuit brought by the decedent’s surviving husband.

In 2008, a woman was diagnosed with an abdominal aortic aneurysm that required surgery. Before undergoing the necessary surgery, decedent began a regimen of blood thinners and had stents inserted into her heart. In January 2009, decedent had surgery. During the procedure there was a 32-minute loss of blood to her kidneys due to renal ischemia and transient hypotension. The patient was discharged five days after the surgery and no further complications were reported. In fact, her husband reported that she looked healthy when they were leaving the hospital. All seemed well.

Less than 24 hours later an ambulance rushed the decedent to the hospital and she was pronounced dead following CPR and other emergency procedures. The attending nurses reported that the decedent’s condition changed in a matter of minutes while they were deciding on a course of action for her care.

Decedent’s husband brought a wrongful death action alleging ordinary negligence as well as corporate liability on the part of the hospital (decedent received surgery and emergency care at the same facility). In support of the wrongful death case, the decedent’s surgeon gave expert testimony explaining what most likely happened to plaintiff leading up to the emergency room, and how a different treatment plan would have most likely saved her life. (Not for nothing, the Minnesota Department of Health also found that there were various acts of negligence leading up to decedent’s death.)
But the hospital got out on a motion to dismiss, finding the surgeon’s testimony to be conclusory. Under Minnesota law, an affidavit in support of a medical malpractice case must identify the expert who will testify, the substance of that testimony, and provide a summary of the basis for the expert’s opinion. Failure to provide these things mandates dismissal with prejudice.

The surgeon’s testimony ran afoul because it jumped to the conclusion that there was negligence rather than explaining the how and why in the chain of events that resulted in death. The district court found that because the cause of death was unknown (the surgeon gave three likely scenarios) that is was impossible to conclude that specific earlier medical attention would have prevented death. The appellate court found this court assumption to be erroneous.

For personal injury lawyers, the take home message is clear: don’t take a case unless you know how to get an expert’s testimony in at trial. A medical malpractice case is just not like any personal injury case. I hate to say this but the plaintiffs may have a legal malpractice case they should consider investigating.

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