Frumkin v. Mayo Clinic

• Decision Date: 28 May 1992
• Docket Number: Nos. 91-1803,91-1804,s. 91-1803
• Citation: 965 F.2d 620
• Parties: Paul Allen FRUMKIN, Appellee, v. MAYO CLINIC, Appellant, Paul Allen FRUMKIN, Appellant, v. MAYO CLINIC, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 620

965 F.2d 620

Paul Allen FRUMKIN, Appellee, v. MAYO CLINIC, Appellant, Paul Allen FRUMKIN, Appellant, v. MAYO CLINIC, Appellee.

Nos. 91-1803, 91-1804.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 11, 1991.

Decided May 28, 1992.

William Robert Stoeri, Minneapolis, Minn., argued (Creighton R. Magid, Minneapolis, Minn., and Benjamin Hippe, Rochester, Minn., on brief), for Mayo Clinic.

Wilbur W. Fluegel, Minneapolis, Minn., argued (Douglas E. Schmidt, Minneapolis, Minn., on brief), for Frumkin.

Before JOHN R. GIBSON and BEAM, Circuit Judges, and KAUFMAN, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

The Mayo Clinic appeals from a judgment entered against it after a second jury trial on Paul A. Frumkin's medical malpractice claim. Mayo doctors had performed surgery on Frumkin to relieve severe and chronic headache pain. Following the surgery, which involved severing a major nerve, Frumkin complained of a side effect called "anesthesia dolorosa," in which the absence of sensation is experienced as pain. After filing suit, Frumkin threatened the lives of two Mayo physicians who were to testify at trial. Mayo moved to dismiss based on these threats; the district court denied the motion. The jury found Mayo not negligent on Frumkin's claim that doctors failed to warn him about the possibility of anesthesia dolorosa, but awarded Frumkin $334,000 in damages because doctors failed to advise him on how to properly care for his left eye, which no longer experienced sensation. The district court granted a new trial on all eye care damages. The jury in the second trial awarded Frumkin $890,301 for eye care damages. On appeal, Mayo argues that the district court erred by (1) granting a new trial on all eye care damages rather than just for lost earnings and medical expenses; and (2) failing to dismiss Frumkin's suit following his threats to Mayo's witnesses. Frumkin cross appeals, arguing that the district court erred in failing to award prejudgment interest and in deducting social security disability benefits as collateral source payments. We affirm the district court's denial of the motion to dismiss on the basis of Frumkin's threats, but reverse in part its order granting the new trial and order that judgment be entered in accordance with this opinion. We also reverse the district court's decisions to deny prejudgment interest on the disability and disfigurement award and on future damages, and to reduce Frumkin's award by the amount of his social security disability benefits.

Frumkin, a lawyer, began to suffer from excruciating and chronic cluster headaches while in college. Following graduation from law school he began to suffer more intense symptoms and was hospitalized on three occasions. He began to miss more and more work and took a large number of medications. In 1982, he contacted physicians at the Mayo Clinic after his regular physician suggested a new surgical procedure to relieve the pain. The procedure, called a suboccipital craniectomy and sectioning of the trigeminal nerve, involves severing a major nerve in the head and would result in a complete and permanent loss of sensation on the left side of Frumkin's face. By eliminating sensation where Frumkin experienced the headache pain, the surgery would make it impossible for him to feel the headaches. Frumkin discussed the nature of the surgery and its consequences with a Mayo neurologist, Dr. J. Keith Campbell, and with a Mayo neurosurgeon, Dr. W. Richard Marsh. Dr. Marsh performed the surgery, which did eliminate the headache pain. Eventually, however, Frumkin began to complain of a side effect of the surgery called "anesthesia dolorosa," in which the brain responds to the absence of sensation in a way that causes the individual to experience pain.

Frumkin also experienced problems with his left eye, in which he had lost both sensation and the tearing function as a result of the surgery. Two months after the surgery, he suffered from an abraded cornea, which he contended resulted from Mayo's failure to provide proper post-surgical instructions for the care of his eye. The following month, he had his eyelid temporarily sewn shut to promote healing of the eye. Soon afterward, he elected to undergo "conjunctival flap surgery," in which the membrane underneath the upper eyelid is drawn down over the eye. This surgery obviated the need for further active eye care, but reduced Frumkin's vision in the left eye.

Frumkin then brought this diversity action alleging that Mayo doctors did not advise him of the risk of anesthesia dolorosa and thus failed to obtain his informed consent, and that Mayo had failed to give him adequate instructions for the post-surgical care of his left eye. Before trial, Frumkin made telephone calls to Drs. Campbell and Marsh, who were also named as defendants, and threatened their lives. Mayo moved to dismiss on the ground that the threats compromised its ability to defend the lawsuit. The district court held a hearing on the motion. Frumkin admitted the threats and explained that they resulted from a combination of his pain, anger and alcohol-induced state. The district court denied the motion to dismiss, but enjoined Paul and Nancy Frumkin from directly contacting any of the defendants or their employees or witnesses.

The case was tried, and Frumkin presented extensive evidence regarding anesthesia dolorosa and some evidence with respect to his eye problems. The particular issues make it unnecessary that we engage in a detailed discussion of the medical evidence at trial or for that matter, the evidence with respect to damages.

The jury returned a verdict in favor of Mayo on the anesthesia dolorosa, finding that doctors had told Frumkin of this potential side effect before surgery and had thus obtained his informed consent. The jury also found, however, that Mayo doctors had failed to instruct Frumkin on proper post-operative eye care. Interrogatories in the special verdict form required specific findings on eight damage issues. The jury awarded Frumkin $105,000 for past lost earnings, $20,000 per year for ten years for future lost earnings, $23,000 for past medical expenses, and $6,000 for past pain, disability and disfigurement. The jury awarded Frumkin nothing for future pain, disability, or disfigurement, past or future embarrassment and emotional distress, or future medical expenses. Frumkin moved for a new trial. Mayo moved for a judgment notwithstanding the verdict, or, alternatively a partial new trial on the eye care issue (including liability) or on eye care damages only, limited to past and future lost earnings and past medical expenses. Mayo did not specifically attack the $6,000 award for past pain, disability and disfigurement.

The district court granted a partial new trial. Frumkin v. Mayo Clinic, No. 4-87-188 (D.Minn. Apr. 21, 1989). It first ruled that the repeal of Minn.Stat. § 604.07 (1986), which provided a formula for the discounting of future damages, required a partial new trial on the issue of damages for lost future earnings. Slip op. at 29-30. It followed Olsen v. Special School Dist. # 1, 427 N.W.2d 707 (Minn.Ct.App.1988), which held that for cases pending on or after the effective date of the repealing legislation, section 604.07 would not be applicable. Id. at 710. The district court concluded that a new trial would be required on issues of future damages to permit the jury to be informed about discounting. Frumkin, slip op. at 30.

The district court then turned to the jury awards for past and future lost earnings. It first stated that the amount of the jury award was speculative, then discussed the evidence and found that none supported the award for past or future lost earnings, and detailed the lack of testimony in this respect. It concluded its discussion as follows: "In light of all of the evidence submitted at trial, the Court 'is left with a definite and firm conviction that the jury has erred' ... in awarding damages for past and future lost wages of $305,000." Slip op. at 31 (quoting Ryan v. McDonough Power Equip., Inc., 734 F.2d 385, 387 (8th Cir.1984)). The district court also concluded that the jury award of $23,000 for past medical expenses must be set aside as "nothing more than speculation" because the only evidence supporting the award did not allocate expenses between treatment of the eye and treatment of anesthesia dolorosa. Slip op. at 32. The district court did not discuss the jury's award of $6,000 for past pain, disability and disfigurement, nor did it discuss the jury's decision not to award damages in the remaining categories. Without delineating the scope of its order, the district court granted a "partial new trial[ ] on the question of damages for Paul Frumkin's loss of vision." Slip op. at 39.

The parties then sought clarification of the scope of the retrial, with Mayo asserting that no retrial was necessary in the damage categories in which the jury had made no award. The district court, in a brief second order, reiterated that the retrial would be limited to damages suffered by Frumkin on the eye care issue. Order of Aug. 28, 1989. It offered no reason for ordering a retrial on the items of damage it had not discussed in the first order.

At a pretrial conference, Mayo again pressed the issue of the new trial's scope. The court stated: "I think all those things, [pain, suffering, disability, disfigurement, shame, humiliation, embarrassment, inconvenience] will be incorporated because I don't think the jury ever really addressed those issues relating to the eye."

The case was then tried again on the issue of eye care damages. The second jury awarded Frumkin $45,000 for past lost earnings, $166,000 for future lost earnings, $18,819 for past medical expenses, $482 for future medical expenses, $250,000 for past disability and disfigurement, $160,000 for future disability and disfigurement, and $250,000 for past embarrassment...