• September 2, 2011

Update (September 2, 2011): As reported below, medical malpractice plaintiff Elliott Kaplan’s surgery did not quite go the way it would have with 20/20 hindsight perhaps, but the jury apparently concluded that perfection, while a worthy aspiration, is not the appropriate standard by which to measure good medical care.

Kaplan lost his jury trial, the jury deliberating for a mere 38 minutes.  (His appeal is still pending before the United States Court of Appeals for the Eighth Circuit (discussion of the appeal, below)).  This week, U.S. District Court Judge John R. Tunheim at least showed Kaplan some sympathy in overruling the award of costs against him.  Costs are usually borne by the loser at trial (not attorneys’ fees, but certain court costs) but when a losing party is indigent, the Court can alleviate his hardship, if only a bit, by foregoing an award of costs.

Original post (March 21, 2011):  Plaintiff Elliott Kaplan was diagnosed with pancreatic cancer and underwent surgery, a “Whipple” procedure, which involved excising portions of the pancreas and stomach as well as the entire pylorus and duodenum.  Turns out he never had pancreatic cancer.  Kaplan has to be on insulin for the rest of his life and sued the doctors and the hospital for medical malpractice and breach of contract.

Plaintiff’s case went to trial before a jury and Judge John R. Tunheim (and after a reprieve reported by Minnesota Litigator some time ago).  The jury came back with a defense verdict in 38 minutes.  Plaintiff sought and was refused a new trial.

The plaintiff asked for the exclusion of evidence of insurance (that is, the so-called collateral source rule).  Plaintiff got no order on that motion but, on the other hand, there was no evidence of insurance payments in the case except for the admission of documents that included reference to an insurance company.  Was the refusal to give a limiting instruction enough to trigger reversal and a new trial?  The judge also took plaintiff’s breach of contract claim from the jury, giving judgment to the defendants at the close of plaintiff’s case because of plaintiff’s failure to support the claim with expert evidence and also based on a failure to offer proof of causation.

The appeal was argued before the U.S. Court of Appeals for the Eighth Circuit (Smith, Shepherd, Arnold) on March 16.

James F. B. Daniels of McDowall, Rice, Smith & Buchanan argued for the plaintiff/appellant.  Bill Stoeri of Dorsey & Whitney L.L.P. argued for defendants/appellees.

It is not often a medical malpractice case goes all the way to trial and it seems fairly breath-taking that a jury should come back with a verdict in 38 minutes.  The odds of a plaintiff winning a “do over” seem low, but time will tell.

Leave a Reply

Your email address will not be published. Required fields are marked *