Opinion
A18-0968
05-20-2019
Patricia J. Marquardt, Respondent, v. James M. Schaffhausen, et al., Appellants, Steven M. Dittes, et al., Defendants, Steven W. Sonnesyn, et al., Defendants.
Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, Minneapolis, Minnesota; and Scott Wilson, Scott Wilson, Attorney at Law, Minneapolis, Minnesota; and Douglas E. Schmidt, Stephanie J. Winter, Schmidt & Salita, Minnetonka, Minnesota (for respondent) Richard J. Thomas, Chad J. Hintz, Burke & Thomas PLLP, Arden Hills, Minnesota (for appellants)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Reversed and remanded
Reyes, Judge
Dissenting, Jesson, Judge Hennepin County District Court
File No. 27-CV-16-12770 Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, Minneapolis, Minnesota; and Scott Wilson, Scott Wilson, Attorney at Law, Minneapolis, Minnesota; and Douglas E. Schmidt, Stephanie J. Winter, Schmidt & Salita, Minnetonka, Minnesota (for respondent) Richard J. Thomas, Chad J. Hintz, Burke & Thomas PLLP, Arden Hills, Minnesota (for appellants) Considered and decided by Reyes, Presiding Judge; Jesson, Judge; and Cochran, Judge.
UNPUBLISHED OPINION
REYES, Judge
In this appeal from judgment following a jury trial on respondent patient's medical-malpractice claims arising out of brain injuries suffered following a knee replacement, appellants orthopedic surgeon and clinic challenge the denial of their motions for judgment as a matter of law (JMOL) or a new trial. We reverse and remand.
FACTS
In January 2012, appellant Dr. James Schaffhausen performed a total knee arthroplasty (TKA) on respondent Patricia Marquardt's right knee. Upon opening the knee joint, Dr. Schaffhausen observed "dark, cloudy fluid" and necrotic (dead) tissue. Dr. Schaffhausen suspected infection and ordered a Gram stain test and a culture. While he waited for the results of the Gram stain test, he disinfected and removed unhealthy tissue from the joint area. The Gram stain test came back negative, indicating "that the likelihood of infection [was] very low," so Dr. Schaffhausen continued with the surgery.
A Gram stain and a culture are tests doctors can order if they suspect an infection. Gram stain tests provide quick results while cultures take several days.
Three days post-surgery, Dr. Schaffhausen learned that the culture sent to the lab produced Methicillin-resistant Staphylococcus Aureus (MRSA), a type of staph infection. Dr. Schaffhausen consulted with an infectious-disease specialist, who advised that Marquardt be treated with a six-week intravenous administration of vancomycin, consisting of one dose every 12 hours. After the administration of the third dose, a vancomycin trough was obtained to ensure that Marquardt's vancomycin levels were not in a dangerous range. Testing showed that her vancomycin levels were in an appropriate range for Marquardt to continue her vancomycin administration at home. Dr. Schaffhausen, relying on the results of additional tests conducted by the infectious-disease specialists, discharged Marquardt from the hospital, and arranged weekly monitoring of her at-home vancomycin treatment by her treating infectious-disease doctor. On the first day of Marquardt's at-home monitoring, a blood test revealed that she had severely high vancomycin levels. Marquardt went to the hospital, where she was diagnosed with vancomycin toxicity, acute renal failure, anemia, and MRSA.
Marquardt's condition deteriorated, and she began experiencing neurological symptoms, including seizures. Marquardt again went to the hospital, where neurologist Dr. Laura Boylan diagnosed her with acute disseminated encephalomyelitis (ADEM) "occurring peri-infecticiously with MRSA." Dr. Boylan placed Marquardt on a steroid regimen to treat the ADEM and discharged her. Marquardt returned to the hospital a few days later. After being discharged again, she returned later that same day after suffering a seizure at home. Neurologist Dr. Mostafa Farache changed Marquardt's diagnosis to posterior reversible encephalopathy syndrome (PRES). Based on this new, updated diagnosis, Marquardt's treatment included discontinuing steroids, which had been administered to reduce the inflammation associated with ADEM, but can aggravate blood pressure and worsen PRES, and beginning treatment for "acute renal failure" due to vancomycin toxicity. Consultation with the Mayo clinic led to the Mayo Clinic's conclusion that Marquardt "[d]eveloped acute renal failure due to vancomycin and then elevated blood pressures. Subsequently developed PRES." Marquardt continues to suffer from significant neurological injuries affecting her vision, balance, memory, and cognition.
ADEM is an autoimmune inflammatory condition, usually seen after an infection, where the immune system, which builds antibodies to attack foreign bodies, attacks the nervous system (brain and spinal cord).
PRES is a condition where there is a hyperperfusion of fluid (sometimes blood) into the brain. Hypertension (high blood pressure) can worsen a case of PRES.
Marquardt filed suit against Dr. Schaffhausen and appellant Twin Cities Orthopedics, P.A. (collectively, appellants) on January 13, 2016, alleging negligence, patient abandonment, and informed-consent violation. The district court held a jury trial over several days. The parties agreed that Marquardt's MRSA infection existed prior to the TKA surgery. Because Marquardt's experts provided differing testimony as to Marquardt's final neurological condition, Marquardt argued two possible theories of causation: (1) relying on Dr. Boylan's initial ADEM diagnosis, Marquardt claimed that Dr. Schaffhausen caused her ADEM by continuing with the TKA surgery after discovering her infected knee joint, and this spread the MRSA infection into her bloodstream; or, alternatively (2) if Marquardt had PRES, then Dr. Schaffhausen caused it by prematurely discharging her from the hospital and failing to properly monitor her vancomycin treatment.
After trial, the jury returned a special verdict in favor of Marquardt, finding Dr. Schaffhausen negligent in his care. The jury awarded Marquardt $2,500,000 in damages. Appellants moved for JMOL in their favor or, in the alternative, a new trial. The district court denied appellants' motions, ruling that the record contained sufficient evidence to support the jury's verdict. This appeal follows.
DECISION
Appellants challenge the denial of their motions for JMOL or a new trial, arguing (1) Marquardt produced insufficient evidence of causation; (2) the district court abused its discretion by admitting Dr. Boylan's ADEM diagnosis without requiring her to testify at trial; (3) Marquardt's counsel engaged in misconduct during closing arguments by materially misrepresenting appellants' expert's testimony; (4) Marquardt failed to prove the reasonableness and necessity of her past medical expenses; and (5) Marquardt's expert witnesses lacked the requisite qualifications to testify. We address appellants' last argument first.
Appellants argue that a new trial is warranted because the district court abused its discretion by admitting the testimony of Marquardt's expert witnesses, Dr. John Stark and Dr. Kevin Stephan. Specifically, appellants contend that, under Minn. R. Evid. 702 and caselaw, both doctors lack the requisite foundational qualifications to testify as medical experts on causation of the two possible neurological conditions. We agree.
The granting of a new trial rests largely within the district court's discretion, and reversal is warranted only when its decision involves a violation of a clear legal right or a manifest abuse of discretion. Blatz v. Allina Health Sys., 622 N.W.2d 376, 387 (Minn. App. 2001), review denied (Minn. May 16, 2001). To prevail on her claim for medical malpractice, Marquardt must show (1) the standard of care recognized by the medical community; (2) Dr. Schaffhausen's departure from that standard; (3) that Dr. Schaffhausen's departure from that standard directly caused her injuries; and (4) damages. Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn. 1983).
To prove that Dr. Schaffhausen's alleged deviations directly caused her injuries, Marquardt argued two different paths of causation based on whether she had a neurological diagnosis of ADEM or PRES, which are two very different neurological conditions with two different treatment programs. Therefore, in order for Marquardt to directly link her ultimate neurological condition to any alleged negligence by Dr. Schaffhausen, she had to demonstrate, including through expert testimony, that the record supported one or both of the possible diagnoses.
While Marquardt argues that "there has been no 'change' to the ADEM diagnosis" by Dr. Farache, rather, that "[b]oth diagnoses exist in the record, as alternative or different explanations" for her brain damage, a careful review of the undisputed record belies Marquardt's argument. Specifically, when Dr. Farache changed Marquardt's diagnoses from ADEM to PRES, he stopped the steroid regimen for ADEM, which indicated that he did not agree with that diagnosis. Significantly, in ending the steroid treatment for ADEM, Dr. Farache testified that steroids pose a risk of worsening PRES. Dr. Farache then commenced treatment specifically and solely for PRES.
We review the district court's determination as to expert-witness competency for a "clear abuse of discretion." Koch v. Mork Clinic, P.A., 540 N.W.2d 526, 529 (Minn. App. 1995) (citation omitted). Minn. R. Evid. 702 governs the admissibility of expert testimony and provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." (Emphasis added). Although education and professional training are important considerations, it is the "occupational experience" of a potential expert witness that is of "controlling importance" when determining qualification. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977) (citation omitted). An expert unfamiliar with a procedure cannot testify about it. Koch, 540 N.W.2d at 529. While "the exclusion of expert medical testimony is within the sound discretion of the [district] court," Reinhardt, 337 N.W.2d at 93, caselaw is clear that a district court abuses its discretion and a new trial may be granted if it admits testimony from an unreliable expert who lacks the requisite scientific knowledge and practical experience in a particular area. Cornfeldt, 262 N.W.2d at 692; accord Sanchez v. Waldrup, 136 N.W.2d 61, 68 (Minn. 1965).
In Reinhardt, the supreme court held that the district court appropriately excluded a pathologist's testimony about the use of a specific drug to treat rheumatoid arthritis because the pathologist lacked practical experience in prescribing the drug or treating a patient taking the drug, and "admitted that it is not his job to make a diagnosis of rheumatoid arthritis." 337 N.W.2d at 93-94. The supreme court in Teffeteller v. Univ. of Minn., upheld the district court's decision that a pediatrician is not competent to testify as to a claim of malpractice in the subspecialty of pediatric oncology because the pediatrician did not specialize in that area and lacked experience in the specialized procedure. 645 N.W.2d 420, 427-28 (Minn. 2002). In Swanson v. Chatterton, the supreme court agreed with the district court's decision to exclude an orthopedic surgeon's testimony about diabetes because the surgeon showed no "special knowledge" or practical experience in the field of diabetes. 160 N.W.2d 662, 669 (Minn. 1968). This court, in Riewe v. Arnesen, upheld a district court's decision to permit a nonsurgeon gastroenterologist to testify about surgical procedures, a matter outside his area of expertise, only because he had extensive occupational experience in the surgical field. 381 N.W.2d 448, 459 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986).
The gastroenterologist had practical experience treating patients with similar abdominal complications as respondent, he worked day-to-day with surgeons over a long period of time, he observed many surgeries, he participated with surgeons in the assessment of surgical needs of patients and types and methods of surgical procedures to be applied, and he had knowledge of surgical standards. Id. Neither Dr. Stark nor Dr. Stephan has this kind of practical experience in neurology.
As explained below, neither Dr. Stark nor Dr. Stephan has the requisite occupational experience in neurology, much less in ADEM or PRES. As a result, they were not qualified to testify on ADEM and PRES, or what caused them, creating a gap in Marquardt's chain of causation.
I. Dr. John Stark
Dr. Stark has the educational and professional training of an orthopedic surgeon, as well as the occupational experience. As a result, he is qualified to opine on the standard of care of an orthopedic surgeon performing a TKA surgery, as well as any deviations from that standard. His testimony on these topics is therefore admissible.
However, Dr. Stark is not a neurologist who specializes in independently diagnosing neurological conditions such as ADEM or PRES. He admits that, as an orthopedic surgeon, he has never treated a patient with ADEM, and admits that incidents of ADEM are "very rare." He further testified that he has never seen a case of ADEM following a MRSA infection. Not only does this reflect his lack of occupational experience, it is direct testimony that weakens Marquardt's "spread" theory as to the causal link between ADEM and MRSA. Dr. Stark is not qualified to provide an opinion about ADEM or its cause. Despite his lack of foundational qualifications, the district court admitted Dr. Stark's testimony that the TKA surgery proximately caused Marquardt's brain damage by ADEM.
Similarly, as to PRES, Dr. Stark has never treated or diagnosed PRES and admits that he is not an expert in PRES. While consultations with specialists may constitute practical experience, Koch, 540 N.W.2d at 530, there is no indication in the record that Dr. Stark consulted with a neurologist about ADEM, PRES, or their causes. Dr. Stark merely "did some reading on" ADEM and PRES in preparation for testifying in this case. Although Dr. Stark claimed that he could distinguish ADEM from PRES based on an MRI image, he incorrectly identified their distinguishing features. Dr. Stark stated that he had "no opinion" as to whether Marquardt had ADEM or PRES. However, later in his deposition, he stated that he thought Marquardt had ADEM.
Finally, the administration of vancomycin treatments is also outside of Dr. Stark's area of expertise. He admitted that, as an orthopedic surgeon, he does not determine when a vancomycin trough should be done or what the proper monitoring of vancomycin troughs would be and that he relied on other medical specialists to provide their expertise in this area. He added that "it would involve a team of people, including the Pharm. Ds. and the infectious disease specialists . . . to discuss these very difficult problems." He admitted that vancomycin toxicity "occurs very rarely," about "5 to 7 percent" of the time.
Because Dr. Stark lacks the necessary occupational experience with respect to ADEM, PRES, and vancomycin treatment, the district court abused its discretion by allowing in his testimony on these three topics and causation.
II. Dr. Kevin Stephan
Dr. Stephan is an infectious-disease specialist who treated Marquardt in this case. He has the educational background and occupational experience to opine on the spread of infections and TKAs in the presence of MRSA. His testimony on these topics is admissible.
However, as an infectious-disease specialist and not a neurologist who specializes in independently diagnosing neurological conditions such as ADEM or PRES, Dr. Stephan is not qualified to provide an opinion as to these conditions. Dr. Stephan lacks prior occupational experience in treating ADEM. His only experience is in this very case. Notably, Dr. Stephan did not independently diagnose Marquardt with ADEM. Rather, he relied on reports from his neurologist or radiologist colleagues to conclude that Marquardt had ADEM. There is no indication in the record that his reliance on the reports involved Dr. Stephan consulting with the neurologists about the causes of ADEM and PRES. The record indicates that, once Dr. Farache changed Marquardt's diagnosis to PRES, Dr. Stephan adopted the PRES diagnosis in his own medical notation in Marquardt's records, several days later. Given Dr. Stephan's lack of occupational experience in diagnosing ADEM and lack of experience in treating ADEM, he is not qualified to independently opine about the neurological conditions or their causes. Despite his lack of qualifications, the district court admitted Dr. Stephan's conclusory testimony that "it's a highly likely situation" that the types of cuts to Marquardt's bone could have spread the MRSA infection and that the MRSA led to ADEM.
Similarly, Dr. Stephan is not qualified to provide an expert opinion on PRES because he lacks the prior occupational experience in treating a patient with PRES. His only experience with PRES is in this very case and, here as well, Dr. Stephan relied on the diagnoses of his neurologist colleagues. Similarly, Dr. Stephan is not qualified to opine about any alleged connection between PRES and vancomycin treatments. He admitted that he has not seen a case of PRES associated with vancomycin toxicity in his practice, only in medical literature. Despite this, he testified that, if Marquardt acquired PRES due to her sensitivity to vancomycin treatment, then the TKA surgery did not cause her PRES. Not only does Dr. Stephan lack the foundational qualification to provide this testimony, but to the extent that he did testify, it is favorable to appellants' case. Because Dr. Stephan lacks the necessary occupational experience with respect to ADEM and PRES, his testimony on these topics, including their cause, should have been excluded.
As an infectious-disease specialist who has treated dozens of cases of vancomycin toxicity, Dr. Stephan is competent to testify about the administration of vancomycin. In this regard, he testified that Marquardt would have experienced vancomycin toxicity whether or not she had the TKA surgery because she needed vancomycin for her MRSA infection, and she had a sensitivity to it. He also stated that the hospital provided Marquardt with "appropriate care" in monitoring her vancomycin troughs prior to her discharge. This dispels Marquardt's theory of causation for PRES, which is based on Dr. Schaffhausen's alleged failure to properly monitor her vancomycin treatment before her discharge from the hospital. Dr. Stephan added that it "didn't seem likely" to him that the vancomycin toxicity caused Marquardt's brain damage.
As a result of Dr. Stephan's testimony about vancomycin treatment, ADEM is Marquardt's only remaining causation theory for her neurological injuries. But neither Dr. Stark nor Dr. Stephan is a neurologist, nor do they have the requisite occupational experience to opine on ADEM or its cause. The district court therefore erred by denying appellants' motion for a new trial on this basis.
Reversed and remanded. JESSON, Judge (dissenting)
I respectfully dissent.
Well within its wide discretion, the district court refused to overturn the jury's $2.5 million verdict in favor of respondent Patricia Marquardt and denied appellants' posttrial motions. It deemed Ms. Marquardt's experts qualified to testify as to causation. And, having presided over the lengthy proceedings, it concluded that the verdict was not "manifestly and palpably contrary to the evidence viewed as a whole." Renswick v. Wenzel, 819 N.W.2d 198, 204 (Minn. App. 2012) (quotation omitted), review denied (Minn. Oct. 16, 2012).
We should affirm. To be sure, both Ms. Marquardt and appellants Dr. James Schaffhausen and Twin Cities Orthopedics, P.A., presented compelling testimony. Based upon my review of the record, I conclude that a reasonable jury could have rendered a verdict for either side. But that is just the point—the jury resolved the evidentiary conflicts in favor of Ms. Marquardt. As a result, appellate review of the underlying testimony is only to consider Ms. Marquardt's experts' qualifications and opinions and the evidence as a whole in the light most favorable to Ms. Marquardt. In re Estate of Butler, 803 N.W.2d 393, 399 (Minn. 2011).
To undertake this review, I begin by addressing the issue of Ms. Marquardt's experts' qualifications deemed determinative by the majority. And since I differ from the majority and would affirm on this ground, I turn to the balance of issues raised by appellants: whether Ms. Marquardt introduced sufficient evidence to prove that his negligence caused her brain injuries; whether Ms. Marquardt's counsel committed prejudicial error in his closing argument; and whether Ms. Marquardt produced adequate evidence to support the jury's award of past medical expenses. Because the district court did not abuse its discretion in denying Dr. Schaffhausen's posttrial motion on these grounds, I would affirm. Qualifications of Ms. Marquardt's experts
This analysis includes my resolution of the issue of whether a medical record including a diagnosis was properly admitted.
Background of experts and testimony
Everyone agrees: Ms. Marquardt had a staph infection—staph aureus, which is referred to as MRSA—when she was rolled into surgery to have her knee replaced by Dr. Schaffhausen. And while all staph infections are serious, MRSA can be particularly aggressive. Dr. Schaffhausen did not know about the infection when he began the operation, but Ms. Marquardt alleges that he made three fundamental errors (deviations from the expected standard of care) between his first appointment with Ms. Marquardt and her ultimate brain damage. First, that Dr. Schaffhausen departed from the standard of care before the surgery, by deciding to perform it, despite the red flags permeating Ms. Marquardt's medical history. Second, that Dr. Schaffhausen departed during the surgery, by continuing with the total knee replacement after opening up Ms. Marquardt's knee and observing dark, cloudy fluid and necrotic (dead) tissue. And third, that Dr. Schaffhausen erred after the surgery, by failing to remove the artificial knee and sending Ms. Marquardt home from the hospital after only three days of monitoring her reaction to the toxic antibiotic vancomycin, rather than keeping her in the hospital or moving her to a transitional care unit for observation. Ms. Marquardt alleged that each of these departures caused her to suffer neurological injuries. Ms. Marquardt's primary theory was that her injuries were caused by ADEM, which in turn was caused by the spread of the MRSA infection into the bloodstream. But Ms. Marquardt alternatively posited that, if she had PRES rather than ADEM, the PRES was caused by the extensive vancomycin treatment that she would not have needed if Dr. Schaffhausen had diagnosed and treated the MRSA infection through less-invasive arthroscopy, instead of proceeding with surgery. Alternatively, she contended that any negative effects resulting from the vancomycin treatment could have been promptly treated if she had remained in the hospital longer or been placed in a transitional care unit. Ms. Marquardt offered two medical experts in support of her medical-malpractice claims: Dr. John Stark and Dr. Kevin Stephan.
Methicillin-resistant staphylococcus aureus
Acute disseminated encephalomyelitis
Posterior reversible encephalopathy syndrome
Dr. Stark, a graduate of the University of Minnesota Medical School, is an orthopedic surgeon certified by the American Board of Orthopedic Surgery and the Arthroscopy Board of North America. After completing a residency in orthopedic surgery, Dr. Stark spent the first nine years of his practice doing general orthopedics, which included total knee replacements and arthroscopy.
Although appellants characterize Dr. Stark as an orthopedic surgeon whose primary practice focused on the spine, lower back, and feet, Dr. Stark testified that he performed total knee replacements at the beginning of his career and again when he was at Regions Hospital as an assistant professor. He estimated that he last performed a total knee arthroplasty in 2008—four years before Marquardt's surgery.
Part of Dr. Stark's training to become an orthopedic surgeon involved learning to recognize and respond to infections as they relate to surgery. As Dr. Stark testified, "[i]t's a huge and critical responsibility of orthopedic surgery to diagnose and treat [infections] efficiently and correctly." In fact, Dr. Stark classified his training regarding dealing with infections and their consequences as a "fundamental part" of his training at the beginning of his career. And Dr. Stark maintains his training by participating in continuing-medical-education programs that involve topics related to preventing, dealing with, and curing infections.
Dr. Stark also explained that doctors frequently rely on the opinions of specialists when diagnosing and treating patients. For example, Dr. Stark testified that although he understands how the kidneys operate and function—something he would expect any competent orthopedic surgeon to understand—he would rely on recommendations from infectious disease specialists and hospital pharmacists when evaluating signs of renal system problems and the effects of various medications. And while Dr. Stark is familiar with ADEM through his background and training, he admitted that he is not an expert on PRES and would use and rely on reports from a trusted neurologist or radiologist when evaluating and diagnosing the condition.
In addition to being a practicing orthopedic surgeon, Dr. Stark joined the University of Minnesota faculty as an assistant professor of orthopedic surgery in 2000. In that position, Dr. Stark used his training and experience to educate young doctors in the areas of total knee replacements and installing artificial knees. Another part of Dr. Stark's responsibilities as a professor involved training students about septic arthritis: an infection inside of a joint.
Dr. Stephan, also a graduate of the University of Minnesota Medical School, is a board-certified specialist in infectious disease medicine, which is a subspecialty of internal medicine. Before becoming a staff physician in the infectious diseases section of the Duluth Clinic, Dr. Stephan served as an infectious disease specialist for the U.S. Air Force for 23 years, 13 of which included active duty. In addition to his own service, Dr. Stephan taught the subject area of infectious diseases at the Uniformed Services University of the Health Sciences, a military medical school for medical officers who are getting their training for active duty.
Dr. Stephan testified that he is familiar with MRSA and has experience treating patients with artificial or prosthetic knee joints that are infected with MRSA. Dr. Stephan has also treated dozens of cases involving vancomycin toxicity. Further, Dr. Stephan described the collaborative process doctors use when making certain decisions—including deciding whether a prosthetic knee gets removed—describing it as "a team approach" where orthopedic doctors get input from infectious disease specialists and then decide the best course of treatment going forward.
Drs. Stark and Stephan offered testimony at trial that supported each of Marquardt's alleged errors as departures from the standard of care and opined that those departures caused Ms. Marquardt's neurological injuries. According to Dr. Stark, Ms. Marquardt's primary expert at trial, Dr. Schaffhausen's first deviation from the standard of care was his decision to schedule Ms. Marquardt for surgery at all. Dr. Stark testified that the sudden onset and severity of Ms. Marquardt's pain presented a red flag, as did the fact of her recent steroid injections, which should have warned Dr. Schaffhausen of the risk of an infected knee. And Dr. Stark opined regarding the serious inadequacy of Ms. Marquardt's presurgical workup, including Dr. Schaffhausen's lack of concern about the anemia revealed in the preoperative examination, as well as indications of abnormal kidney function and a low hemoglobin level.
In sum, Dr. Schaffhausen should have suspected something unusual was wrong with the knee and not proceeded to surgery, Dr. Stark testified. Rather, Dr. Schaffhausen should have aspirated the knee to examine the synovial fluid which "almost certainly" would have led to the proper diagnosis, performed an arthroscopy (a less-invasive procedure using cannulas and telescopes) to "wash out" the knee, and prescribed antibiotic treatment. This alternative, arthroscopic approach would have minimized the risk of spreading the MRSA infection. The chance this less invasive treatment would have cured Ms. Marquardt's MRSA infection—without any complications—was 90 to 95%, according to Dr. Stark.
But surgery went forward, and, according to Drs. Stark and Stephan, Dr. Schaffhausen deviated from the standard of care for a second time. In Dr. Stark's view, when Dr. Schaffhausen encountered the abnormal fluid and dead tissue, he should have immediately recognized this as evidence of infection. And immediately ended the surgery. Instead, he installed an artificial knee into an apparently infected joint. Dr. Stark testified that the cutting and sawing involved in artificial knee surgery—doing "bone work" as he described it—aggravated the MRSA infection and spread it into the bloodstream. Dr. Stephan agreed. He testified that the cutting of bones led to the exposure of the infection to the blood stream. It is a "highly likely situation" because when disrupting these bones "that's where the vascular supply or the blood supply to the bone is richest, and so that's going to allow bacteria to gain access that way."
Dr. Stark testified that Dr. Schaffhausen could have performed a frozen biopsy and waited for the results, which he would have received around the same time as the results of the Gram stain test and certainly before the end of surgery.
Three days after the surgery, when the culture taken from Ms. Marquardt's knee came back positive for MRSA, Ms. Marquardt began a six-week course of intravenous vancomycin. This precipitated the third alleged deviation from the standard of care: premature discharge. According to Dr. Stark, Dr. Schaffhausen should have removed the artificial knee and treated the infection before discharge. Alternatively, Ms. Marquardt should have been transferred to a transitional care facility. Under closer supervision, he testified, there was a 100% chance Ms. Marquardt's vancomycin toxicity would have been discovered more quickly and stopped.
Instead, Ms. Marquardt, treated at home with intravenous vancomycin, began experiencing neurological symptoms. After a generalized tonic clonic seizure, during her second post-surgery admission to St. Mary's Hospital in Duluth, a brain MRI was ordered. The radiologist read it as showing a condition that "is concerning for a process such as ADEM, encephalitis." And neurologist Dr. Laura Boylan diagnosed Ms. Marquardt with ADEM, an autoimmune reaction to an infection. And that infection, according to Dr. Boylan, was MRSA.
Dr. Boylan's medical notation reads ADEM "occurring peri-infectiously with MRSA."
But that is not the only neurological diagnosis in the medical record. When Ms. Marquardt returned to the hospital, after apparently suffering a seizure at home, Dr. Mostafa Farache diagnosed her with PRES and treated her for "acute renal failure" due to vancomycin toxicity. As a result, we have two differential diagnoses in the record that attempt to explain the undisputed permanent sensory and cognitive impairment that Ms. Marquardt experiences. One (ADEM) relates more to the spread of MRSA theory of causation and one (PRES) to the vancomycin chain of causation.
While Dr. Schaffhausen argues that Dr. Farache changed Ms. Marquardt's diagnosis from ADEM to PRES, I reject that description. Rather, the medical record reflects two diagnoses. I further note that Dr. Farache described Dr. Boylan as a respected neurologist with specialty training in the diagnosis of ADEM.
With regard to causation, Dr. Stark testified that Dr. Schaffhausen's decision to proceed with surgery and install the total knee was "directly connected" to Ms. Marquardt's brain damage. In explaining the connection between Dr. Schaffhausen's decisions and Ms. Marquardt's ultimate brain damage, Dr. Stark explained:
[Dr. Schaffhausen] took huge chances with this patient. He cut the bone, allowing the bacteria to be underneath the pro[s]theses and protected from the antibiotics where they can do further damage. He pushed them into the system so that the patient would get a bacteremia. Those kinds of things lead to a deterioration of the circumstance, a downward spiral of which all orthopedic surgeons should be fearful . . . and educated to protect [the patient] from those things and he didn't do that.
So when you get down the road and you have ADEM or PRES or whatever - if this patient is damaged and the doctor has not taken sufficient care to protect them from these complications, he's at fault. It's a deviation. And that's clearly what happened here. He did a total knee replacement in a person with septic arthritis. That is never done. And anything which happens down the road from that should be expected to be a deterioration based on that abnormal circumstance and the deviation that he exercised, including ADEM.
Accordingly, Dr. Stark testified that, based on his experience as an orthopedic surgeon, complicating septic arthritis with bone work creates an aggravation of the infection, and here, Marquardt ended up with ADEM as a result. When questioned about Marquardt's PRES diagnosis, Dr. Stark acknowledged that he was not an expert in vancomycin and renal function, but stated that he is a "a physician who studies this problem." And, Dr. Stark testified, the sepsis that caused the ADEM was "a strong factor" in Marquardt's kidney failure and contributed to the impairment of her renal function and a spike in her vancomycin levels. Dr. Stark further opined that it was unlikely that Marquardt has PRES because it typically is secondary to other types of disease processes, which Marquardt did not have.
Similarly, Dr. Stephan—who is an infectious-disease specialist—testified that Marquardt's MRSA infection existed at the time of her knee operation and led to ADEM, which caused Marquardt's brain damage, reduced cognitive functioning, and partial blindness. And to the extent of Dr. Stephan's knowledge, infection is the cause of ADEM in 100% of cases. Further, Dr. Stephan—who has encountered dozens of cases of vancomycin toxicity—testified that it "didn't seem likely" to him that the vancomycin toxicity was the cause of Marquardt's brain damage, given that the toxicity resolved quickly and her kidney function improved after treatment.
Application of the standard of review
Minnesota Rule of Evidence 702 provides for expert testimony where a witness is qualified "by knowledge, skill, experience, training, or education." And the expert's opinion must have "foundational reliability." Minn. R. Evid. 702. Whether sufficient foundation exists to qualify a witness as an expert is a question of fact for the district court. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977). In assessing that question of fact in a medical-malpractice action, the court must consider whether that witness has both "sufficient scientific knowledge" and "some practical experience" with the subject matter of the proposed testimony. Id. And when assessing "some practical experience", consultations with treating physicians may constitute practical experience. Koch v. Mork Clinic, P.A., 540 N.W.2d 526, 529 (Minn. App. 1995), review denied (Minn. Jan. 12, 1996).
Here, the district court held that both Dr. Stark and Dr. Stephan satisfied the foundational threshold for testifying, and that any challenge to their academic or experiential qualifications went to the weight of their opinion, rather than admissibility. And it was for the jury to assess that weight. On appeal, that ruling should be sustained unless there was a "clear abuse of discretion." Id. at 529.
To discern whether the district court abused this discretion, one must distill the central causation dispute at trial. It was not the fight over whether PRES or ADEM was the proper neurological diagnosis for the final link leading to Ms. Marquardt's brain damage. The central causation dispute was whether Ms. Marquardt's condition resulted from the "spread of MRSA" due to the elective surgery as opposed to her reaction to vancomycin. Appellants vigorously asserted the latter. Even if no surgery took place, they asserted, vancomycin would have been prescribed to treat the preexisting MSRA infection.
Dr. Stark, a practicing orthopedic surgeon for decades and an assistant professor, was well qualified to testify on this central question. His experience and teaching specifically deal with evaluating and diagnosing infections. This experience enabled him to explain why treating the knee with a less-invasive arthroscopic procedure would result in a 90% chance of a MRSA cure. That the bone work during the surgery created an aggravation of the infection. And that if Dr. Schaffhausen had kept Ms. Marquardt under close medical supervision postsurgery, her vancomycin toxicity would have been quickly discovered and stopped. Similarly, when it comes to the central causation dispute (spread of MRSA or reaction to vancomycin), Dr. Stephan was well qualified to opine. An infectious-disease specialist, he has experience treating patients with artificial knee joints infected with MRSA and has encountered dozens of cases involving vancomycin toxicity. And in his opinion, it "didn't seem likely" that the vancomycin toxicity was the cause of Ms. Marquardt's brain damage. But it was, according to Dr. Stephan, "highly likely" that the bone work during surgery spread the MRSA infection to Ms. Marquardt's bone and the blood stream.
Neither expert is a neurologist. But not all of the alleged deviations from the standard medical care even require this specialized knowledge. Not the decision to proceed to surgery instead of using the less-invasive approach. Not the alleged premature discharge decision. And where the neurological diagnosis is important, these experts appropriately relied upon their general medical training, research and the opinions of specialists contained in the medical records. These facts further support the district court's expert admissibility decision.
In their motion for judgment as a matter of law, appellants assert that Ms. Marquardt's medical records containing Dr. Boylan's ADEM diagnosis were improperly allowed into evidence and that Dr. Boylan must testify before her ADEM diagnosis could be admitted. But the ADEM diagnosis is located within Ms. Marquardt's medical records, which are admissible under the business-records exception to the hearsay rule. See Minn. R. Evid. 803(6). Medical records, such as those at issue here, are made in the regular course of business if they are relevant to "medical history, treatment, or diagnosis." Lindstrom v. Yellow Taxi Co. of Minneapolis, 214 N.W.2d 672, 678 (Minn. 1974). Here, Ms. Marquardt's diagnosis is clearly relevant to her treatment and falls square within the hearsay exception. While appellants argue Cornfeldt dictates otherwise, and Dr. Boylan should have been required to testify because Ms. Marquardt's diagnosis is a "highly controversial" conclusion regarding a central issue of this case, Cornfeldt is distinguishable. In Cornfeldt, the medical records contained a diagnosis that was not supported by any scientific proof. 262 N.W.2d at 702. Here, Dr. Boylan diagnosed Ms. Marquardt with ADEM, which is a medically-accepted diagnosis under these circumstances. Further, appellants could have subpoenaed Dr. Boylan to elicit her testimony. Nothing in the record indicates that appellants did so. As such, the district court did not abuse its discretion in admitting Ms. Marquardt's medical records containing Dr. Boylan's diagnosis of ADEM.
In addition to the wide discretion accorded district courts in assessing expert qualifications, I am guided by three decisions: Cornfeldt v. Tongen, Riewe v. Arnesen, and Koch v. Mork Clinic, P.A. In Cornfeldt, in a rare reversal of an expert-qualification decision, the supreme court concluded that the district court abused its discretion when it excluded the testimony of a gastroenterologist who, based upon his years of being consulted by surgeons, would have testified that the actions of two surgeons did not conform to accepted medical practice because Cornfeldt was not a suitable candidate for surgery. 262 N.W.2d at 693-94. The court explained:
Opinion evidence is not restricted to the testimony of the person best qualified to give an opinion or even to some of the few persons best qualified. . . . It is usually held that any person whose profession or vocation deals with the subject at hand is entitled to be heard as an expert, while the value of his evidence is to be tested by cross-examination and ultimately determined by the jury.Id. at 693 (emphasis added and cleaned up).
In a similar vein, this court in Riewe, citing Cornfeldt, upheld the district court's decision to permit a nonsurgeon internist to testify as an expert on whether surgery was properly performed despite appellant's claim that the matter was outside his area of expertise. Riewe v. Arnesen, 381 N.W.2d 448, 458-59 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986). And in Koch, we upheld a district court's decision to permit a physician who had not practiced for decades, but who consulted with practicing physicians on the topic at hand, to testify as a medical expert. 540 N.W.2d at 530. These cases demonstrate the wide latitude accorded district courts when making assessments regarding qualifications. Given this deference to the district court and the impressive credentials and wide range of experiences of these physicians, I conclude the district court did not abuse its discretion in allowing Dr. Stark and Dr. Stephan to testify as medical experts on causation.
Nothing in our caselaw suggests that a consultation must be in person, particularly considering advancements in technology resulting in easily accessible electronic medical records. I note that Dr. Schaffhausen was provided with "infectious disease consultation" regarding the intravenous administration of vancomycin before Ms. Marquardt's hospital discharge without personal contact with the physicians.
While appellants' brief cites to additional cases beyond Cornfeldt which he claims support the position that Dr. Stark's lack of practical experience with ADEM or PRES was prejudicial, these cases actually demonstrate the deference given to a district court's decision regarding expert qualifications. In each case, the supreme court determined the district court did not abuse its discretion by excluding expert testimony, unlike here where the majority determines it was an abuse of discretion for the district court to allow the testimony. See Reinhardt v. Colton, 337 N.W.2d 88, 93-94 (Minn. 1983) (upholding district court's decision to exclude expert's testimony, because he was a pathologist and lacked the practical experience of treating rheumatoid arthritis with a specific drug); Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427-28 (Minn. 2002) (upholding district court's decision to exclude expert testimony from pediatrician because he did not specialize in pediatric oncology or have experience in the specialized procedure at issue); Swanson v. Chatterton, 160 N.W.2d 662, 669 (Minn. 1968) (upholding district court's decision to exclude testimony from orthopedist because his qualifications "revealed no special knowledge in the field of diabetes"); Williams v. Wadsworth, 503 N.W.2d 120, 125 (Minn. 1993) (upholding district court's decision to exclude cardiologist's testimony because he had limited experience with the procedure at issue and because he attempted to give an expert opinion outside his cardiological expertise).
Still, appellants argue that both Dr. Stark and Dr. Stephan lack the foundational qualifications required due to their lack of scientific knowledge and practical experience with ADEM and PRES. In support of this, appellants point to Lundgren v. Eustermann, 370 N.W.2d 877 (Minn. 1985), and Kinning v. Nelson, 281 N.W.2d 849 (Minn. 1979), for the proposition that Dr. Stark's admission to reading about ADEM and PRES in preparation for trial supports the conclusion that he was unqualified to testify about them.
Both cases are distinguishable. In Lundgren, a psychologist attempted to testify about the standard of care of a physician in administering a particular drug. 370 N.W.2d at 880-81. A psychologist, despite having extensive theoretical knowledge about the drug, is not a physician. Here, Dr. Stark and Dr. Stephan are physicians with the broad background that medical school and residencies provide. And in Kinning, a medical expert witness attempted to testify about the standard of care exercised by general practitioners in 1965, when, at that time, he was a freshman in college and would not complete medical school until seven years later. 281 N.W.2d at 854. The expert conceded that his opinion as to the standard of care in 1965 was based principally on a selection of medical articles and books, although he did not know whether any of the precise literature he used was commonly reference by doctors in 1965. Id. at 855. Here, Dr. Stark and Dr. Stephan were physicians at the time of Ms. Marquardt's surgery. Unlike Kinning, they not only relied on their general medical training and reading, but upon the diagnosis contained in the medical records of a treating radiologist and neurologist.
More fundamentally, appellants' focus on ADEM and PRES misses the larger point: Dr. Stark certainly was qualified to testify about the outcome if surgery had not occurred in the first place, as well as the outcome for violating the standard of care for orthopedic surgeons which called for more time in the hospital or rehabilitation center to monitor progress post-surgery. Both relate to causation and are intimately tied to his background as an orthopedic surgeon.
It is rare indeed to overturn a district court's decision on expert qualifications. As it should be. It is the district court that is intimately involved with the case. And here, great deference is due to that court's refusal to reverse its decision on expert qualification after presiding over the multi-day trial. I note that the litany of cases cited in appellants' brief reinforces this approach. While a number of appellate decisions uphold a district court's rejection of expert affidavits and testimony based upon an abuse of discretion standard of review, it is the rare case that reverses a district court's acceptance of expert testimony. This matter, on this record, is not that rare case.
See cases cited supra note 11.
Sufficiency of evidence to prove causation
All that was required for the jury to reach their verdict regarding causation was that Dr. Schaffhausen's negligence led, more likely than not, to Ms. Marquardt's injuries. And as the district court stated, "such evidence was certainly received at trial." In the order denying appellants' posttrial motions, the district court pointed to the multiple statements of Drs. Stark and Stephan that the sawing and cutting described in the operative report were likely to spread infection into the bone and blood; to Dr. Stark's testimony that the operation (which should never have taken place) spread "bacteria and inflammatory products" into the bloodstream, causing Ms. Marquardt's injuries; and to Dr. Stephan's testimony that her ongoing harm was caused by ADEM. And Dr. Stark testified that regardless of whether ADEM or PRES is the appropriate final diagnosis, Ms. Marquardt's injuries are causally related to the decision to proceed with the operation. Certainly, as the district court recognized, cross-examination of these experts "exposed potential weaknesses in the ADEM causal chain." But the experts reaffirmed their opinions on redirect. Cross-examination does not, as the district court pointed out, erase the balance of the experts' testimony from evidence.
Even appellants' expert witness, Dr. Farache, could not say that ADEM had been an impossible diagnosis.
The district court's decision is well supported by the record. I will not reiterate the evidence of causation already addressed. But let me reinforce: Ms. Marquardt alleged three deviations from the standard of care by Dr. Schaffhausen. Linking only one of them to Ms. Marquardt's brain damage supports the verdict on causation. And each link in the causal connection need not be explicitly tied to the words of an expert. Rather, if expert testimony "reasonably implie[s]" the necessary chain of causation, the jury verdict stands. Knuth v. Emergency Care Consultants, P.A., 644 N.W.2d 106, 112 (Minn. App. 2002), review denied (Minn. Aug. 6, 2002).
The district court did not abuse its discretion when it determined that there was a view of the evidence not manifestly unreasonable that supports the verdict. Renswick, 819 N.W.2d at 204. And that—not clockwork precision—is what the law requires.
Statements during closing argument
Dr. Schaffhausen also argues that the district court abused its discretion by failing to order a new trial on the basis of an alleged "blatant misrepresentation" of the appellants' expert testimony made by Ms. Marquardt's counsel during closing arguments. The decision whether or not to grant a new trial due to attorney misconduct rests almost entirely within the discretion of the district court and "should not be reversed on appeal absent a clear abuse of discretion." Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989)
The alleged misrepresentation involved statements from Ms. Marquardt's counsel which confused the testimony of appellants' infectious-disease expert witness by conflating ischemic perfusion (reduced blood flow) with hyper-perfusion (increased blood flow).
The primary consideration in determining whether to grant a new trial is prejudice. Johnson v. Washington Cty., 518 N.W.2d 594, 600 (Minn. 1994) (quotation omitted). And a new trial is not warranted unless the improper statement resulted in prejudice to the losing party that is sufficient to affect the outcome of the case. Eklund v. Lund, 222 N.W.2d 348, 350 (Minn. 1974). Here, the district court determined that, although Ms. Marquardt's counsel "unquestionably" confused the defense expert's testimony, the misstatement did not prejudice appellants. Further, the district court stated that, "[h]aving listened to the closing argument—which is a markedly different experience than reading it from a transcript—[Ms. Marquardt's] counsel's misstatement came across more as lexical confusion than a deliberate or malicious attempt to distort the juror's recollection of the record." Because the district court is in the best position to determine prejudice, I would conclude that the district court did not abuse its discretion by denying appellants' motion for a new trial on the basis of improper statements made during closing argument. See Fischer v. Mart, 241 N.W.2d 320, 321-22 (Minn. 1976) (stating that the district court judge is in the best position to determine whether an attorney's misconduct prejudiced the jury because he is present during the trial and able to observe its impact).
Evidence of medical expenses
Finally, appellants contend that it was an abuse of discretion for the district court to deny the motion for a new trial on the basis that Ms. Marquardt failed to produce expert testimony regarding the reasonableness and necessity of her past medical expenses.
Here, district court concluded that there was sufficient evidence in the record about the various treatments provided to Ms. Marquardt and their necessity. Based upon this evidence, the jury could reasonably determine which expenses were causally related to Dr. Schaffhausen's negligence. That conclusion is entitled to deference. The amount of damages is a question of fact for the jury and is entitled to wide deference as long as the amount is within the range of reasonable awards. Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988), review denied (Minn. May 4, 1988). And a new trial on the issue of damages is granted only when a jury verdict is "so inadequate or excessive that it could only have been rendered on account of passion or prejudice." Rush v. Jostock, 710 N.W.2d 570, 577 (Minn. App. 2006) (quotation omitted), review denied (Minn. May 24, 2006). As the district court concluded, testimony at trial provided the jury with ample information about the impact of the surgery, the care Ms. Marquardt required in the weeks and months following the surgery, and the care she required up until the verdict. Based on the record, the jury had sufficient information to make its own determination of which medical expenses were reasonable and necessary without the assistance of expert testimony. As such, it was not an abuse of discretion for the district court to deny appellants' motion for a new trial on this ground.
I also note that appellants do not cite any binding authority that stands for the proposition that expert testimony is required to demonstrate that each charge contained within a medical bill is causally related to the negligence. --------
Conclusion
Much of our justice system rests on the role of independent jurors. Because the district court acted well within its wide discretion when it denied appellants' posttrial motions to overturn the jury's $2.5 million verdict, I dissent.