Jensen v. Leonard, No. A08-2253 (Minn. App. 10/20/2009)
| Decision Date | 20 October 2009 |
| Docket Number | No. A08-2253.,A08-2253. |
| Parties | Mark A. Jensen, as trustee for the next of kin of Ann Marie Jensen, Appellant, v. Parker Arnold S. Leonard, M. D., Defendant, University of Minnesota Medical Center-Fairview, Respondent, University of Minnesota, formerly d/b/a University of Minnesota Medical Center, Respondent. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Hennepin County, File No. 27-CV-05-017115.
David B. Ketroser, M.D., J.D., Hopkins, MN (for appellant)
Rebecca Egge Moos, Margaret E. Noubissie, Charles E. Lundberg, Susan E. Gustad, Bassford Remele, P.A., Minneapolis, MN (for respondent University of Minnesota Medical Center-Fairview)
William M. Hart, Rodger A. Hagen, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, MN (for respondent University of Minnesota)
Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and Connolly, Judge.
UNPUBLISHED OPINION
In this appeal from summary judgment dismissing appellant's claims of negligent credentialing and breach of a duty to warn, appellant argues that the district court erred by (1) dismissing his claims on the grounds that he failed to establish a prima facie case of negligent credentialing or a breach of a duty to warn and (2) denying his motion to compel answers to written deposition questions regarding the competence of the doctor who was allegedly negligently credentialed. We affirm.
On March 17, 2003, Ann Marie Jensen sought treatment for abdominal pain from Dr. Vandana Gupta, M.D., at the Parker Hughes Cancer Center and was referred to Dr. Arnold Leonard, M.D., for a colonoscopy. On May 1, 2003, Leonard performed a colonoscopy on Jensen, during which he attempted to biopsy part of Jensen's colon but experienced difficulty due to bleeding. In October 2003, Jensen presented at the Mercy Hospital emergency room with shoulder pain and was referred to a rheumatologist. The rheumatologist ordered a CT scan, which revealed liver cancer that was confirmed by a biopsy. In December 2003, a colonoscopy and biopsies revealed colon cancer. Jensen received unsuccessful chemotherapy in December 2003 and died on January 28, 2004.
Appellant Mark A. Jensen, as trustee for the next of kin of Ann Marie Jensen, filed suit against the Parker Hughes Cancer Center, Gupta, and Leonard. Appellant voluntarily dismissed the claims against Gupta and the Parker Hughes Cancer Center and settled the claim against Leonard. Appellant's suit also alleged that the University of Minnesota Medical Center-Fairview negligently credentialed Leonard and that the University of Minnesota (the university) had a special relationship with Jensen that created a duty for the university to warn Jensen of Leonard's known lack of colonoscopy competence, and the university failed to warn Jensen.
Appellant provided an affidavit of Dr. Douglas Rex, M.D, a gastroenterologist. Rex opined that to a reasonable degree of medical probability, Leonard breached the standard of care for performing a colonoscopy on May 1, 2003, and that "[i]f Dr. Leonard had competently performed Mrs. Jensen's colonoscopy on May 1, 2003, it is probable that she would have been diagnosed with colon cancer at that time."
Appellant also provided an affidavit of Dr. Harold N. Londer, M.D, an oncologist. Londer opined that, at the time of the May 1, 2003, colonoscopy, Jensen's cancer was probably stage III or stage IV. Londer opined that if it was stage III and Jensen had been started on appropriate treatment in May 2003, it is probable that Jensen would have survived her cancer. Londer opined that if the cancer was stage IV and Jensen had been started on appropriate treatment in May 2003, it is probable that Jensen would have survived for three years if the cancer was surgically respectable with curative intent or that Jensen would have had a median survival of two years if the cancer was not initially surgically respectable with curative intent.
Appellant also presented an affidavit of Nancy Kolb, R.N., which states that in 1988, Kolb was the head nurse of the endoscopy unit at the University of Minnesota Hospital. In that capacity, Kolb observed Leonard performing various endoscopic procedures, including colonoscopies. Kolb's observations of Leonard caused her to have concerns regarding Leonard's competence to perform colonoscopies. Kolb stated that similar concerns about Leonard's competence were expressed to her by other members of her nursing staff. Kolb discussed these concerns with Dr. Michael Shaw, M.D., the director of the endoscopy unit. According to Kolb, Shaw then shadowed Leonard, which means he observed him performing colonoscopies. Kolb stated that, from that point through the remainder of the time that she was head nurse of the endoscopy unit, Leonard did not perform any more endoscopic procedures, including colonoscopies.
When Shaw shadowed Leonard in 1988, the University of Minnesota Hospital and Clinic was owned and run by the university. However, the university put into the record two agreements: an Asset Transfer and Statutory Merger Agreement, which was entered into on December 31, 1996, and an Academic Affiliation Agreement, which became effective on January 1, 1997. Under these agreements, the University of Minnesota Hospital and Clinic was severed from the university and merged with and into Fairview Hospital and Healthcare Services, a Minnesota nonprofit corporation (Fairview). As a result of the merger, the university's hospital assets were combined with Fairview assets to create an operating division of Fairview called "Fairview University Medical Center." Under the Academic Affiliation Agreement, Fairview holds the operating license for the consolidated hospital campus, and "[e]xcept with respect to faculty members who are otherwise authorized to provide patient care and to receive reimbursement for such services . . ., individual patient care is not controlled, supervised, or paid for by the University."
Appellant's attorney alleges that Shaw told him that he shadowed Leonard performing a colonoscopy in 1988, determined that Leonard was not competent to perform colonoscopies, and instructed Kolb that Leonard was no longer allowed to perform endoscopic procedures. Appellant served written deposition questions on Shaw regarding Shaw's observation of Leonard performing a colonoscopy and Leonard's competence to continue performing colonoscopies. Shaw provided an affidavit stating that in the late 1980s, he was the medical director of the University of Minnesota Endoscopy Clinic, and in that role, he had the responsibility of "determining whether a professional's staff privileges should be granted, limited, suspended or revoked."
Fairview filed a motion for summary judgment, and appellant moved to compel answers to the written deposition questions served on Shaw. On October 31, 2006, the district court denied appellant's motion to compel answers because the information sought by the questions was protected from discovery under Minn. Stat. § 145.64 (2006) and granted summary judgment for Fairview. The summary judgment was based on this court's decision in Larson v. Wasemiller, which held that Minnesota does not recognize a cause of action for negligent credentialing. 718 N.W.2d 461,468 (Minn. App. 2006), rev'd, 738 N.W.2d 300 (Minn. 2007) (). On September 19, 2007, following the supreme court's Larson decision, this court reversed and remanded the summary judgment in this case.
On November 21, 2007, the district court granted summary judgment for the university. The district court noted that it was undisputed that Jensen was not a patient of the university in 2003 or in the 1980s when Leonard performed colonoscopies at the university. It also noted that the university no longer owned or operated the hospital where Leonard performed Jensen's colonoscopy and had not credentialed Leonard to perform colonoscopies when he performed Jensen's colonoscopy. The district court concluded that the university did not have a duty to warn patients of Leonard's incompetence because a hospital only has a special relationship to its own patients.
Appellant again moved to compel discovery from Shaw. On March 12, 2008, the district court denied the motion. It concluded that Shaw was a peer reviewer and therefore his impressions were protected by the peer-review statute. The district court also concluded that the information sought was too remote in time to be relevant to the issues litigated in the case.
On March 30, 2008, appellant provided a second affidavit from Rex. In the amended affidavit, Rex described the standard of care for credentialing a colonoscopist and opined that, because Leonard did not complete the necessary training, Fairview did not meet the standard for credentialing to perform colonoscopies. Rex also concluded that Leonard's performance when he was shadowed by Shaw was not "consistent with reasonably granting Dr. Leonard privileges to perform colonoscopies in 2003."
Fairview again moved for summary judgment on October 23, 2008, and the district court granted the motion and dismissed appellant's claim against Fairview. The district court concluded that Kolb's affidavit was insufficient to create a prima facie case of negligent credentialing because Kolb was not qualified to testify to the applicable standard of care of a physician and that the events of 1988 were too remote in time to be admissible. The district court also concluded that appellant presented no evidence that Fairview's credentialing and re-credentialing processes were unreasonable. Finally, the court concluded that appellant failed to establish causation between the alleged negligent credentialing and Jensen's death.
This appeal followed, challenging the summary judgment for...
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