This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0334
Kimberly Shierts, Trustee for the Heirs of Jodie Shierts,
Appellant,
vs.
University of Minnesota Physicians, et al.,
Respondents,
Regents of the University of Minnesota, et al.,
Defendants.
Filed December 29, 2014
Reversed and remanded
Halbrooks, Judge
Hennepin County District Court
File No. 27-CV-12-19487
Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota (for appellant)
David D. Alsop, Jennifer M. Waterworth, Gislason & Hunter LLP, Minneapolis,
Minnesota (for respondents)
Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant-trustee challenges the district court’s dismissal of this wrongful-death
medical-malpractice action arising out of her sister’s death from cancer contracted from a
donated organ. Appellant asserts that the district court erred by determining as a matter
of law that it was not foreseeable that the decedent would contract cancer from a
transplanted organ and thus that respondent-doctor did not breach the standard of care,
and that the alleged breach was not the proximate cause of the decedent’s death. Because
there exist genuine issues of material fact in relation to both the standard of care and
causation, we reverse and remand for further proceedings consistent with this opinion.
FACTS
Jodie Shierts died of T-cell lymphoma after she received a pancreas from an organ
donor who had the disease. Neither the donor’s treating doctors nor Shierts’s doctor,
respondent Ty Dunn, M.D., knew that the donor had cancer before the transplant. This
case arises out of appellant Kimberly Shierts’s allegations that Dr. Dunn was negligent in
accepting the organ for transplantation into Shierts.
Shierts suffered from Type I diabetes. By the end of 2006, she had been
diagnosed with end-stage renal disease and required both kidney and pancreas
transplants. She received a kidney from her sister on December 5, 2006. On March 6,
2007, having recovered from the kidney transplant, Shierts was placed on the pancreas-
transplant waiting list.
On March 30, 2007, Dr. Dunn was notified of a pancreas that would be available
for transplantation. Dr. Dunn communicated about the pancreas with Lisa George at Life
Source, an organ-procurement organization. George told Dr. Dunn that the donor was a
15-year-old whose cause of death was thought to be bacterial meningitis. Because no
causative organism for bacterial meningitis had been discovered by the donor’s doctors,
2
Dr. Dunn made further inquiries about the basis for the diagnosis. Based on George’s
responses to her inquiries, Dr. Dunn understood that a cerebral-spinal-fluid analysis had
revealed no bacterial growth but that the lumbar puncture to collect the fluid was done
after the institution of antibiotics. Based on this information, Dr. Dunn concluded that
the test probably yielded a false negative because the bacteria had already been treated
with antibiotics at the time the sample was drawn. Confirming that the donor’s
meningitis was bacterial was important to Dr. Dunn’s consideration of whether to accept
the pancreas because she considered the alternative—viral meningitis—to be a relative
contraindication for a pancreas transplant. Based on her understanding of the donor’s
health history, Dr. Dunn made the decision to accept the donor’s pancreas and
successfully transplanted the donated pancreas into Shierts on March 30, 2007.
The donor of the pancreas transplanted into Shierts died in Long Island, New
York, after a month-long illness. In early March 2007, he was admitted to Southampton
Hospital and underwent a lumbar puncture that did not produce any bacterial pathogens.
Contrary to Dr. Dunn’s understanding, this lumbar puncture was done before the
institution of antibiotics. Physicians at Southampton diagnosed the donor with viral
meningitis. Later that same month, the donor was admitted to Stony Brook University
Hospital. During his admission at Stony Brook, the donor underwent an MRI, which
revealed meningitis, and another lumbar puncture that contained no bacterial organisms
or growth. Physicians at Stony Brook diagnosed the donor with bacterial meningitis.
The donor died on March 30, 2007.
3
On May 3, 2007, an autopsy revealed that the cause of the donor’s death was not
bacterial or viral meningitis, but T-cell lymphoma, a rare form of cancer. Shierts’s
doctors were notified of the autopsy results, and on May 9, 2007, Shierts underwent a
pancreatectomy to remove the donated organ.1 The donated pancreas was determined to
contain cancer cells. The cancer was also determined to be widespread in Shierts, who
underwent chemotherapy following the diagnosis. Shierts died from severe sepsis related
to the lymphoma on September 12, 2007.
Following Shierts’s death, appellant was appointed as trustee for the heirs and next
of kin of Shierts and initiated this wrongful-death medical-malpractice action against
Dr. Dunn and respondent University of Minnesota Physicians (together respondents).
In support of her claim, and to satisfy the expert-identification requirements of
Minn. Stat. § 145.682 (2012), appellant submitted an affidavit from her counsel
identifying Paul W. Nelson, M.D., as her testifying expert. The affidavit states that
“Dr. Nelson will testify that the standard of care governing physicians and other health
care professionals engaged in organ transplant surgery requires that an organ offered for
transplant not be accepted unless and until it has been determined that the organ likely is
safe and suitable for transplantation.” The affidavit further provides with respect to the
standard of care:
It is required that the medical records relating to the illness
that led to the death of the organ donor be obtained and
reviewed by the transplant professional. It is further required
that the transplant professional confirm, by objective medical
1
Shierts’s native pancreas had not been removed and continued to function but did not
manufacture insulin, so she “was back to where she started” in terms of organ function.
4
evidence if possible, the true and correct cause of death of the
donor.
If there is any doubt as to the donor’s diagnosis or the
suitability of the organ, the standard of care does not permit
the healthcare professional to accept the organ for
transplantation. . . . Further, the organ may not be accepted if
it is or should be determined that the donor suffered from a
viral illness, including viral meningitis, or a lymphoma.
With respect to respondents’ alleged breaches of the standard of care, the affidavit
provides:
[I]t was a breach of the standard of care not to have reviewed
the relevant portions of the medical records relating to the
illness that led to the death of [the donor], including, but not
limited to, the records from Southampton Hospital. Further,
it was a breach of the applicable duty not to confirm the cause
of death of [the donor], that is, that the cause of death in fact
was bacterial meningitis or some other condition that would
not preclude the acceptance of the organ for transplantation.
It was a breach of the applicable duty to have accepted the
organ when [the donor’s] objective test results and clinical
presentation strongly suggested his cause of death was not the
result of bacterial meningitis and, consequently, was
unknown.
The affidavit describes in considerable detail the inquiry that Dr. Nelson will
testify that respondents were required, but failed, to undertake to determine if the donor’s
pancreas was suitable for transplantation. The affidavit explains that Dr. Nelson will
testify that, had respondents complied with the standard of care in determining whether to
accept the pancreas, they would have been “duty bound to reject [the donor’s] pancreas
for transplantation to [Jodie] Shierts because enough uncertainty surrounding [the
donor’s] cause of death existed to constitute a foreseeable danger in accepting any of his
organs.”
5
With respect to causation, the affidavit explains that Dr. Nelson will “opine that
the negligence of [respondents] . . . was a direct cause of the death of [Jodie] Shierts due
to T-cell lymphoma.” The affidavit states that Shierts died as a result of receiving the
donor’s cancerous pancreas. It further articulates that, if she would not have received the
cancerous pancreas, Shierts probably would have survived long enough to receive a
healthy pancreas and that a “subsequent transplant would have been successful and
enabled [Jodie] Shierts to live out her adulthood.” The affidavit describes in detail the
bases for Dr. Nelson’s opinions in this regard, citing statistics regarding the average wait-
times for donated organs and the survival rates for pancreatic transplants, and assessing
Shierts’s individual circumstances.
Respondents submitted their own expert affidavit and moved for dismissal
pursuant to Minn. Stat. § 145.682 or for summary judgment. The district court granted
the motion, and this appeal follows.
DECISION
To prevail on her medical-malpractice claims, appellant must prove (1) “the
standard of care recognized by the medical community” in relation to respondents’
conduct; (2) that respondents deviated from that standard of care; and (3) that the
departure from the standard was the direct cause of Shierts’s death. Dickhoff ex rel.
Dickhoff v. Green, 836 N.W.2d 321, 329 (Minn. 2013), reh’g denied (Sept. 9, 2013).
Medical-malpractice claims in Minnesota are further governed by Minn. Stat. § 145.682,
which requires a medical-malpractice plaintiff to serve on defendants two affidavits, an
affidavit of expert review with the complaint and an affidavit of expert identification
6
(sometimes referred to as an affidavit of expert disclosure), within 180 days of
commencement of the action. Minn. Stat. § 145.682, subd. 2.2
We review the district court’s grant of summary judgment de novo to determine
(1) whether there are genuine issues of material fact and (2) whether judgment is
appropriate as a matter of law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d
72, 76 (Minn. 2002). We must “view the evidence in the light most favorable to the party
against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.
1993). We review a dismissal for failure to comply with Minn. Stat. § 145.682 for an
abuse of discretion. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn.
2005).
The district court in this case granted dismissal both on summary-judgment
grounds and for failure to comply with Minn. Stat. § 145.682. Because the district court
relied primarily on a summary-judgment analysis, and because a grant of summary
judgment would be dispositive even if the district court erred by granting dismissal for
failure to comply with Minn. Stat. § 145.682, we focus first on the summary-judgment
decision. We conclude that appellant has raised genuine issues of material fact with
respect to each element of her medical-malpractice claim and that the district court thus
erred by granting summary judgment.
2
Minn. Stat. § 145.682, subd. 2, was amended in 2014 to require disclosures “within 180
days after commencement of discovery under the Rules of Civil Procedure, rule
26.04(a).” 2014 Minn. Laws ch. 153, § 1, at 110. The amendment was effective April 4,
2014, but applies only to actions commenced on or after that date. Id., § 5, at
111. Because appellant commenced this action in September 2010, the amendment does
not apply here.
7
Standard of care
With respect to the standard of care and breach of that standard, appellant’s expert,
Dr. Nelson, will testify that Dr. Dunn was required to investigate and “confirm, by
objective medical evidence if possible, the true and correct cause of death of the donor.”
Dr. Nelson further will testify that the standard of care would require rejection of an
organ if “there is any doubt as to the donor’s diagnosis or the suitability of the organ.”
And Dr. Nelson will specifically testify that an organ should “not be accepted if it is or
should be determined that a donor suffered from a viral illness, including viral
meningitis, or a lymphoma.” Dr. Nelson will testify that Dr. Dunn breached the standard
of care by failing to review the donor’s medical records and by accepting the organ when
“objective test results and clinical presentation strongly suggested his cause of death was
not the result of bacterial meningitis and, consequently, was unknown.” Both Dr. Dunn
and respondents’ expert dispute Dr. Nelson’s characterization of the standard of care, but
that merely creates a genuine issue of material fact that precludes the entry of summary
judgment. See Becker v. Mayo Found., 737 N.W.2d 200, 216 (Minn. 2007) (holding that
the standard of care in medical-malpractice cases “is a question of fact for the jury”).
The district court acknowledged Dr. Nelson’s opinion with respect to Dr. Dunn’s
breach of the standard of care but reasoned that “the [d]onor’s diagnosis at the time of the
transplant surgery was neither unknown nor uncertain. The final diagnosis was bacterial
meningitis although earlier physicians thought it was viral meningitis.” To the extent that
the district court determined that the donor had bacterial meningitis at the time of his
death, the district court engaged in impermissible fact-finding at the summary-judgment
8
stage of proceedings. At the very least, the district court’s reasoning misses the import of
Dr. Nelson’s testimony. Dr. Nelson does not dispute the history of diagnoses of the
donor’s illness. And it is undisputed that the doctors at Stony Brook diagnosed the donor
with bacterial meningitis. But Dr. Nelson opines that Dr. Dunn breached the standard of
care by relying on that diagnosis when there were indications in the medical records that
it might not be accurate.
The district court also reasoned that Dr. Dunn did not violate the standard of care
because it was not foreseeable that the donor had T-cell lymphoma. But Dr. Nelson
opines that Dr. Dunn breached the standard of care by accepting the donor’s pancreas
because it could not be confirmed that the donor had bacterial meningitis, and there was a
risk that the donor had viral meningitis or some other illness that would make the
pancreas unsuitable for transplantation. Dr. Nelson concludes that “enough uncertainty
surrounding [the donor’s] cause of death existed to constitute a foreseeable danger in
accepting any of his organs.” Dr. Nelson’s testimony in this regard is sufficient to create
jury questions on the first two elements of appellant’s medical-malpractice claim—the
standard of care and Dr. Dunn’s departure therefrom. See Dickhoff, 836 N.W.2d at 329
(stating elements of medical-malpractice claim without reference to foreseeability); see
also 70 C.J.S. Physicians & Surgeons § 134 (“A medical malpractice case is a kind of
tort action in which the traditional negligence elements are refined to reflect the
professional setting of a physician-patient relationship.”).
9
Causation
In order to prove causation, appellant must prove “that it is more probable than not
that his or her injury was a result of [Dr. Dunn’s] negligence.” Leubner v. Sterner, 493
N.W.2d 119, 121 (Minn. 1992). The parties’ experts agree that Shierts’s death was
caused by T-cell lymphoma and that she contracted the T-cell lymphoma from the
pancreas transplanted into her. Dr. Nelson further will testify that, had Dr. Dunn rejected
the donor’s pancreas, Shierts likely would have lived long enough to receive a different
pancreas and would have recovered from a subsequent transplant to “live out her
adulthood.” Respondents’ expert disputes Dr. Nelson’s opinions in this regard, but again,
that is what creates a genuine issue of material fact that precludes the entry of summary
judgment. See Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995) (“Generally,
proximate cause is a question of fact for the jury; however, where reasonable minds can
arrive at only one conclusion, proximate cause is a question of law.”).
The district court reasoned that causation cannot be proven because “the failure to
confirm whether the [d]onor’s cause of death was viral or bacterial meningitis
undisputedly did not cause [Jodie] Shierts’ death. The [d]onor in fact had neither and
[Jodie] Shierts in turn was not infected with either.” This reasoning is inconsistent with
Minnesota caselaw on proximate cause.
[F]or a party’s negligence to be the proximate cause of an
injury, the act must be one which the party ought, in the
exercise of ordinary care, to have anticipated was likely to
result in injury to others, though he could not have
anticipated the particular injury which did happen. There
must also be a showing that the defendant’s conduct was a
substantial factor in bringing about the injury.
10
Id. at 401 (quotations, citations, and alterations omitted) (emphasis added). Put another
way, “negligence is tested by foresight but proximate cause is determined by hindsight.”
Dellwo v. Pearson, 259 Minn. 452, 456, 107 N.W.2d 859, 862 (1961). Here, there can be
little dispute that Dr. Dunn’s decision to accept the pancreas for transplantation into
Shierts was a substantial factor in bringing about Shierts’s death. Moreover, as is
discussed above, Dr. Nelson’s expert testimony is sufficient to support a jury finding that
acceptance of the pancreas constituted a departure from the standard of care. The fact
that the particular injury was not foreseeable does not preclude a finding of proximate
cause:
If a person had no reasonable ground to anticipate that a
particular act would or might result in any injury to anybody,
then, of course, the act would not be negligent at all; but, if
the act itself is negligent, then the person guilty of it is
equally liable for all its natural and proximate consequences,
whether he could have foreseen them or not.
Id. at 455, 107 N.W.2d at 861 (quotation omitted).
Because appellant has offered evidence sufficient to support findings in her favor
on each element of her medical-malpractice claim, the district court erred by granting
summary judgment to respondents.
Compliance with Minn. Stat. § 145.682
For the same reasons that it erred in granting summary judgment, the district court
abused its discretion by determining that appellant’s affidavit of expert identification was
insufficient. In order to satisfy the statutory requirements, an affidavit of expert
identification must
11
(1) disclose specific details concerning the expert’s expected
testimony, including the applicable standard of care,
(2) identify the acts or omissions that the plaintiff alleges
violated the standard of care, and (3) include an outline of the
chain of causation between the violation of the standard of
care and the plaintiff’s damages.
Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn. 2002).
Respondents attempt to characterize this as a case in which appellant’s expert has
failed to provide an outline of causation. See, e.g., id. at 428-29 (summarizing cases in
which the supreme court has determined affidavits insufficient with respect to the chain-
of-causation requirement). But this is not a case in which the cause of the injury is
disputed. The parties’ experts agree—and appellant’s affidavit of expert identification
sets forth—that Shierts died from T-cell lymphoma that she contracted from the
transplanted pancreas. Liability in this case will turn not on causation, but on whether
Dr. Dunn violated the standard of care in accepting the donated pancreas for
transplantation into Shierts. Respondents do not challenge appellant’s affidavit of expert
review on the basis that it fails to set forth the standard of care and Dr. Dunn’s conduct
that is alleged to have breached that standard. Nor, based on our analysis above, could
they succeed in such a challenge. Accordingly, we conclude that the district court abused
its discretion by granting dismissal for failure to comply with Minn. Stat. § 145.682.
Reversed and remanded.
12