As covered previously on Minnesota Litigator, plaintiff Elliott Kaplan had the misfortune of undergoing pancreatic cancer surgery at the Mayo Clinic (a “Whipple procedure”) but it turned out he never had pancreatic cancer. The applicable standard imposed on doctors and other professionals, thankfully, is not perfection. So, although with 20/20 hindsight we can suggest that Kaplan’s pancreatitis could have been/should have been treated differently, the question for the jury was not “should the plaintiff have had ‘the Whipple procedure'” that he got for non-existent pancreatic cancer. The question was whether the treatment he received fell outside of the applicable standard of professional care.
On defendant’s motion for judgment as a matter of law before trial, U.S. District Court Judge John R. Tunheim (D. Minn.) threw out the plaintiff’s breach of contract claim and the case then went to trial on the professional malpractice claim, with the jury finding in favor of the defendants. Now the 8th Circuit has reversed Judge Tunheim as to the breach of contract claim against Mayo and a Mayo physician.
The Eight Circuit’s decision is bad luck for Mayo, of course, which might have been over and done with the case if it had allowed that claim to go to the jury rather than seeking to have part of it thrown out before trial.
The decision also seems to be somewhat surprising (that is, maybe wrong?).
Plaintiff’s breach of contract theory was that a Mayo physician, on behalf of the Mayo clinic, contracted and agreed to perform an intraoperative biopsy (that is a cancer screening during the half-time show of the surgery). They did not perform one. Therefore, according to the Eighth Circuit, plaintiff may plead that Mayo breached its contract with him — wholly separate and apart from the claim that the Mayo Clinic and its physicians’ alleged malpractice for failure to perform the intraoperative biopsy.
The Eighth Circuit (Judge Arnold, with Judges Shepherd and Smith on the panel) called this a “perfectly ordinary, garden-variety contract claim,” “straightforward” and not dependent on whether the defendants violated a standard of care to which Minnesota doctors must adhere.
A “perfect ordinary, garden-variety contract claim” where patient and doctor bargain and dicker and reach a deal for a particular medical procedure to be undertaken during cancer surgery (which bargain bears no relationship whatsoever to the applicable standard of care for the kind of surgery involved)? Did they discuss price? That’s normally part of a contract for services, isn’t it? How can a decision to undertake or not undertake a specific procedure during a surgery be unrelated to the applicable standard of care?