This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0693
Deborah Meckola,
as Trustee for the Heirs of Jordan Adams, Decedent,
Respondent,
vs.
Thomas J. Rishavy, M.D., et al.,
Appellants.
Filed April 4, 2016
Affirmed
Schellhas, Judge
St. Louis County District Court
File No. 69DU-CV-13-317
Robert K. Randall, William M. Fishman, Michael C. Van Berkom, Fishman, Carp,
Bescheinen & Van Berkom, Ltd., Plymouth, Minnesota (for respondent)
William M. Hart, Julia J. Nierengarten, Meagher & Geer, P.L.L.P., Minneapolis,
Minnesota; and
Tracy A. Schramm, Geraghty, O’Loughlin & Kenney, P.A., Duluth, Minnesota (for
appellants)
Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Following a jury trial on respondent’s medical-malpractice wrongful-death claims,
appellants seek reversal of a money judgment against them and remand for a new trial. We
affirm.
FACTS
On April 28, 2010, 17-year-old Jordan Adams sustained burns in a welding accident
at his high school and was admitted to SMDC Medical Center in Duluth for treatment.
Appellant Thomas J. Rishavy, M.D., a plastic surgeon, was Adams’s attending physician
at SMDC.1 Adams’s burns were not considered to be life threatening, and his prognosis
was good. But Adams died at SMDC on May 12. An autopsy revealed that the immediate
cause of death was an undiagnosed endocrine condition called Addison’s disease and that
an underlying cause of death was Adams’s burn trauma, which triggered an Addisonian
crisis causing electrolyte abnormalities that stopped Adams’s heart.
Respondent Deborah Meckola, Adams’s mother and trustee for his heirs, brought
medical-malpractice wrongful-death claims against physician-defendants and SMDC. A
few weeks before trial, Meckola informed physician-defendants and the district court that
she had settled her claims against SMDC and moved to exclude from evidence Adams’s
prehospitalization medical records. The records document Adams’s history of mental-
1
At all material times, Dr. Rishavy was acting within the course and scope of his
employment by appellant Northland Plastic Surgery P.A. We therefore refer to Dr. Rishavy
and Northland collectively as “physician-defendants.”
2
health issues and indicate that, prior to his burn injury, Adams experienced physical
symptoms including high heart rate, low blood pressure, loss of appetite, and weight
fluctuations. Dr. Rishavy did not review the records in treating Adams but learned of
Adams’s preexisting mental-health issues shortly after Adams’s admission to SMDC. The
court denied Meckola’s motion but noted that it would consider at trial any “specific
objections regarding specific entries” in the medical records.
On the first day of trial, Meckola informed physician-defendants and the district
court that her claims against SMDC had been settled through a Pierringer release, and
Meckola later stipulated to dismiss her claims against SMDC with prejudice. Meckola’s
claims against physician-defendants were tried to a jury. During physician-defendants’
cross-examination of Meckola’s first expert witness, the court sua sponte restricted the use
of Adams’s prehospitalization medical records; after two of Meckola’s expert witnesses
testified and were excused, the court expressly ruled that the records were admissible in
redacted form. Following the close of evidence, because neither party had referred to or
attempted to introduce the records in redacted form, the court ruled: “We can make the . . .
record[s] part of the record in terms of appellate issues and give [them] an exhibit number,
but I will not be sending [the records] to the jury.”
The jury found in favor of Meckola and awarded $508,033.60 in damages.
Physician-defendants moved for a new trial, assigning error to the district court’s rulings
regarding Adams’s prehospitalization medical records and to its decision not to submit the
question of SMDC’s comparative fault to the jury. The court denied physician-defendants’
new-trial motion and entered judgment for Meckola.
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This appeal follows.
DECISION
Physician-defendants argue that the district court committed reversible error in “the
fact and manner of” its restriction of the use of Adams’s prehospitalization medical records.
Physician-defendants also argue that the court committed reversible error by
“suppress[ing]” the question of SMDC’s comparative fault.
“[Appellate courts] afford the district court broad discretion when ruling on
evidentiary matters, and [appellate courts] will not reverse the district court absent an abuse
of that discretion.” Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015). “By their very
nature, evidentiary rules demand a case by case analysis, an analysis best left to the trial
judge familiar with the setting of the case.” Id. (quotations omitted). “But the erroneous
exclusion of evidence is grounds for a new trial unless the exclusion was harmless.” Id.;
see also TC/Am. Monorail, Inc. v. Custom Conveyor Corp., 840 N.W.2d 414, 422 (Minn.
2013) (“To be entitled to a new trial based on an improper evidentiary ruling, [a party]
must establish prejudice.”). “An evidentiary error is prejudicial if it might reasonably have
influenced the jury and changed the result of the trial.” TC/Am. Monorail, 840 N.W.2d at
423 (quotation omitted).
Prehospitalization medical records
Physician-defendants argue that the district court committed reversible error in the
manner of its restriction of the use of Adams’s prehospitalization medical records by
“narrow[ing]” the restriction only after two of Meckola’s expert witnesses testified and
were excused. This argument rests upon a factual assertion—namely, that the court’s sua
4
sponte ruling during physician-defendants’ cross-examination of Meckola’s first expert
witness “prohibited [physician-defendants] from using the pre-hospitalization records for
any purpose.” But the appellate record disproves physician-defendants’ assertion.
When physician-defendants began to question Meckola’s first expert witness
regarding Adams’s prehospitalization medical records, the district court halted cross-
examination, excluded the jury from the courtroom, and asked physician-defendants to
explain the relevance of records not relied upon by Dr. Rishavy in his treatment of Adams.
After counsel argued that the records were relevant to the expert witness’s credibility, the
court ruled that “we’re not going to be talking about prior unrelated physical findings that
[Dr. Rishavy] did not rely upon in the treatment of [Adams].” (Emphasis added.) In
reaching its ruling, the court noted that Dr. Rishavy had been aware of Adams’s preexisting
mental-health issues and stated, “How that plays into the case, we’ll let the attorneys
inquire and have at it with respect to that.” The court’s ruling did not prohibit the use of
Adams’s prehospitalization medical records for any purpose. Instead, the court restricted
the use of the prehospitalization medical records to records regarding Adams’s mental
health. The court later confirmed, rather than narrowed, that ruling when it stated:
[A]ny information relative to [Adams’s mental-health issues]
. . . are fair game for [physician-defendants] and any records
that deal with those [issues] directly are fair game and may be
part of the medical record that goes to the jury in this case, but
those records that deal with prior physical symptoms that are
identical or similar to the ones observed in this case would not
be relevant because [Dr. Rishavy] did not rely upon them, and
so we are going to have to redact the records to make sure that
doesn’t happen.
5
We conclude that the court did not err in the manner of its restriction of the use of the
prehospitalization medical records.
Physician-defendants argue that they were entitled to unrestricted use of Adams’s
prehospitalization medical records “to challenge the credibility of [Meckola]’s experts by
showing that the factual basis for their opinions—that [Adams] was, ‘by history,’ a normal,
healthy 17-year-old boy whose symptoms should have been considered unusual and
alarming—was flawed.” According to physician-defendants, Adams’s “history of eating
issues, rapid fluctuations in his weight, incidents of low blood pressure and high heart rate,
and vomiting associated with anxiety” undermined the credibility of Meckola’s experts,
whose testimony purportedly supported a theory that “Adams was a healthy, normal, and
active 17-year-old who exhibited new, uncommon, and alarming physical symptoms.” But
our close examination of the testimony of Meckola’s three expert witnesses shows that
none of the witnesses testified that Adams was healthy prior to his hospitalization or that
his physical symptoms did not predate his hospitalization. Instead, the witnesses testified
about the appearance and progression of Adams’s physical symptoms during the
hospitalization and about the typicality of those physical symptoms in patients like Adams.
We therefore conclude that Adams’s prehospitalization medical records had limited, if any,
relevance to the credibility of Meckola’s experts.
Even if physician-defendants were entitled to unrestricted use of Adams’s
prehospitalization medical records to cross-examine Meckola’s expert witnesses,
physician-defendants have failed to establish prejudice by showing that unrestricted use
“might reasonably have influenced the jury and changed the result of the trial.” TC/Am.
6
Monorail, 840 N.W.2d at 423 (quotation omitted). Dr. Rishavy testified that he did not
remember using differential diagnosis when treating Adams and that he may not have
reviewed Adams’s hospital chart each time that he saw him. Meckola presented expert
testimony that Dr. Rishavy departed from the standard of care by failing to perform
differential diagnoses on Adams; failing to properly review Adams’s chart; failing to order
electrolyte testing on or before May 9, 2010; and failing to consult with a pediatric
intensivist prior to May 12. Indeed, Dr. Rishavy’s own expert witness testified that Dr.
Rishavy departed from the standard of care by failing to perform differential diagnoses on
Adams and failing to properly review Adams’s chart. And each of Meckola’s experts
testified that one or more of Dr. Rishavy’s departures from the standard of care caused or
contributed to Adams’s death. In light of the overwhelming evidence of their liability for
Adams’s death, we conclude that physician-defendants are not entitled to a new trial on the
grounds that the district court erroneously restricted physician-defendants’ use of the
prehospitalization medical records in cross-examining Adams’s experts. See Hendrickson
v. Magney Constr. Co., 402 N.W.2d 194, 196 (Minn. App. 1987) (stating that “if
[erroneously excluded] evidence or testimony is only collateral and not material to the main
issues, a new trial is not warranted” (citing Newton v. Minneapolis St. Ry. Co., 186 Minn.
439, 445, 243 N.W. 684, 687 (1932))); cf. Becker v. Mayo Found., 737 N.W.2d 200, 214
(Minn. 2007) (“Where a case is close on the facts, rejection of competent and material
evidence is reversible error.” (quotation omitted)).
Physician-defendants alternatively argue that Dr. Rishavy testified about why he
exercised his medical judgment as he did and that he should have been permitted to
7
affirmatively use the prehospitalization medical records to show that Adams’s medical
history corroborated the reasonableness of Dr. Rishavy’s conclusions. In other words,
physician-defendants claim that Adams’s prehospitalization medical records “corroborated
the reasonableness of [Dr. Rishavy’s] judgment” that Adams’s physical symptoms during
his hospitalization were caused by the combination of his burn injuries and his preexisting
mental-health issues. But physician-defendants did not make an affirmative-use argument
below, instead insisting that the records were relevant to the credibility of Meckola’s
experts and unequivocally stating that the records “d[id]n’t factor into [Dr. Rishavy’s]
treatment of [Adams].” We therefore do not consider physician-defendants’ affirmative-
use argument on appeal. See Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628,
633 (Minn. 2013) (“Generally, a party may not obtain review by raising the same general
issue litigated below but under a different theory.” (quotation omitted)).
Even if we were inclined to consider physician-defendants’ affirmative-use
argument, the absence of the prehospitalization medical records from the appellate record
prevents us from determining whether the records contain otherwise-admissible evidence
that physician-defendants could have used to refute evidence of Dr. Rishavy’s departures
from the standard of care. Such absence is inexplicable in light of the district court’s
express invitation to place the prehospitalization medical records in the appellate record.
The absence of the prehospitalization medical records from the record before us provides
an independent reason for our decision not to consider physician-defendants’ affirmative-
use argument. See Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d
608, 609 (1976) (“An appellant has the burden of providing an adequate record for appeal.
8
Error cannot be presumed.”). We conclude that the district court did not abuse its discretion
by restricting the use of Adams’s prehospitalization medical records.
Comparative fault
Physician-defendants argue that, because Meckola settled her claims against SMDC
by way of a Pierringer release, they had a right to attempt to establish SMDC’s
comparative fault in Adams’s death. We agree that physician-defendants could have
pursued a comparative-fault strategy by presenting evidence of SMDC’s negligence and
requesting a jury determination on SMDC’s comparative fault. See Frey v. Snelgrove, 269
N.W.2d 918, 923 (Minn. 1978) (“If there is evidence of conduct which, if believed by the
jury, would constitute negligence (or fault) on the part of [the settling defendants], the fault
or negligence of th[e settling defendants] should be submitted to the jury.” (quotation
omitted)); Rediske v. Minn. Valley Breeder’s Ass’n, 374 N.W.2d 745, 749 (Minn. App.
1985) (“Here, where the record reveals a demand by [nonsettling defendants’] counsel for
submission of [settling defendant’s] . . . fault to the jury, the trial court erred in not
submitting the question to the jury. There was an arguable basis to submit comparative
fault of any party: the trial court should not have denied [nonsettling defendants’]
request.”), review granted (Minn. Dec. 11, 1985) and appeal dismissed (Minn. May 15,
1986). But physician-defendants did not pursue such a strategy.
The record reflects that, prior to learning of Meckola’s settlement with SMDC,
physician-defendants filed proposed jury instructions that included an instruction on
comparative fault; they also filed a proposed special-verdict form that included questions
9
regarding SMDC’s comparative fault. At a subsequent pretrial hearing, the district court
stated:
It’s my understanding . . . that the case relative to
[SMDC] . . . has been dismissed by settlement. The issue of
how we submit negligence malpractice type issues to the jury
with respect to [SMDC] I think still remains open for
discussion, but that’s not an issue before the Court right at this
point in time. I think it’s at least included in [physician-
defendants’] proposed jury forms.
(Emphasis added.) But in its introductory remarks to the jury on the first day of trial, the
court identified only physician-defendants as “the parties being sued by [Meckola] in this
case.”
At the end of the second day of trial, the court referred to off-the-record “discussions
about whether or not SMDC should remain on the caption and also be part of a comparative
fault analysis” and stated, “I’m not sure I can couch it in terms of [counsel for physician-
defendants] agreeing that [SMDC] should not be on the jury verdict form or on the caption,
but she didn’t raise any strenuous objection when we discussed it in chambers.” Counsel
for physician-defendants acknowledged that she had filed the proposed jury instructions
and special-verdict form prior to finalization of the settlement between Meckola and
SMDC, and she stated unequivocally that “as long as SMDC . . . is not going to be listed
in the caption, then [physician-defendants] do not object to not having SMDC on the
verdict form.” With no objection by physician-defendants, the court then ruled that SMDC
would “not be included” in the jury instructions or on the verdict form.
Following the close of evidence and discussion with counsel, the district court
stated:
10
[O]ff the record we had about a half hour session where we
went through the instructions. I got insight from both sides on
particular instructions, told both counsel what I would do in
terms of rulings, but did indicate that we would go back on the
record, preserve any objections, thoughts, clarifications for the
record.
Physician-defendants did not raise the comparative-fault issue. The court did not instruct
the jury on comparative fault, and physician-defendants did not object. Nor did physicians-
defendants object to the special-verdict form, which did not include questions regarding
SMDC’s comparative fault. We conclude that physician-defendants abandoned any initial
request for a jury determination on SMDC’s comparative fault and thereby forfeited their
right to such a determination. Cf. Fire Ins. Exch. v. Adamson Motors, 514 N.W.2d 807, 810
(Minn. App. 1994) (“Normally, the trial court should submit to the jury the fault of all parties,
including that of settling defendants. The failure to do so does not constitute error, however,
if the rights of all parties are protected and the adversarial process preserved. [Nonsettling
defendant] did not seek apportionment of any fault against [settling defendant] and cannot be
heard to complain of that failure now.” (citations omitted)).
Physician-defendants attempt to avoid forfeiture by asserting that, off the record,
“[t]he [district] court ruled preemptively, before trial started, that [they] would be
precluded from attempting to prove SMDC’s comparative fault.” We are not persuaded.
The record reflects that, on the first of two opportunities to state for the record physician-
defendants’ position on the comparative-fault issue, counsel for physician-defendants
conceded, “[A]s long as SMDC . . . is not going to be listed in the caption, then [physician-
defendants] do not object to not having SMDC on the verdict form.” And on the second
11
opportunity, counsel for physician-defendants made no mention of the comparative-fault
issue when asked to “preserve any objections, thoughts, clarifications for the record.”
Physician-defendants did not make an adequate record of the ruling that they now claim
explains their decision not to seek a jury determination on SMDC’s comparative fault. We
therefore reject that claim.
Affirmed.
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