Zwaschka v. Carney

Decision Date27 June 2011
Docket NumberA10-1915,A10-1914
PartiesSusan Zwaschka, et al., Respondents, v. Patrick Carney, M. D., Defendant (A10-1914), Appellant (A10-1915), Skin Speaks M. D., LLC, Appellant (A10-1914), Defendant (A10-1915)
CourtMinnesota Court of Appeals

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. §480A.08, subd. 3 (2010).

Affirmed

Larkin, Judge

Hennepin County District Court

File No. 27-CV-08-29413

Chris Messerly, Vincent J. Moccio, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, Minnesota (for respondents)

Diane B. Bratvold, Jessica J. Stomski, Briggs and Morgan, P.A., Minneapolis, Minnesota; and

Sally J. Ferguson, Paul E.D. Darsow, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota (for appellant-Carney)

Timothy W. Waldeck, Lindsey J. Woodrow, Waldeck & Lind, P.A., Minneapolis, Minnesota (for appellant-Skin Speaks) Considered and decided by Stoneburner, Presiding Judge; Larkin, Judge; and Willis, Judge.*

UNPUBLISHED OPINION

LARKIN, Judge

Appellants challenge the denial of their motions for judgment as a matter of law and for a new trial. Because the jury's verdict is supported by the evidence, and because the district court did not err in its denial of a new trial or in its finding of vicarious liability, we affirm.

FACTS

Appellant Patrick Carney, M.D., practices general and cosmetic dermatology. Dr. Carney owns appellant Skin Speaks M.D., LLC. Respondent Susan Zwaschka became a patient of Dr. Carney's in 1988; she began skin treatment with a Skin Speaks esthetician in 2001 or 2002, and with a different esthetician, Jeanne Jellison, in 2003. Zwaschka saw Jellison once every four to six weeks and received a number of treatments.

In 2007, Zwaschka asked Jellison if she could try something more corrective for her skin because the treatments were not accomplishing her goals. Jellison suggested a "medical grade treatment" and explained Dr. Carney's chemical-peel technique. A chemical peel, as defined by Zwaschka's medical expert, is the "controlled wounding of the skin with an acid." Chemical peels can be light, medium, or heavy, based on the percentage of trichloroacetic acid (TCA) included in the solution.

Zwaschka scheduled an appointment for a chemical peel with Dr. Carney. Upon her arrival at Skin Speaks, Zwaschka signed a consent form and took Vicodin and Valium at Jellison's direction. Jellison led Zwaschka to a spa room and brought in two solutions—one containing 20 percent TCA, the other containing 30 percent TCA. When Dr. Carney arrived in the spa room, Zwaschka explained that she wanted a light peel. As Jellison testified, Zwaschka asked for "the lightest version of [Dr. Carney's] chemical peel" because Zwaschka knew that "he does more aggressive peels." She also told the doctor that she intended to take a trip to Chicago with her family eight days after the procedure. Dr. Carney testified that, on the morning of the appointment, Jellison informed him that Zwaschka wanted a "medium-depth" peel.

Dr. Carney applied a pre-peeling agent of alcohol, which he testified is lighter than the Septisol soap and acetone that he typically uses. He then performed a chemical peel that he described as "slightly lighter than a classic medium-depth chemical peel," using 30 percent TCA rather than 35 percent TCA. Zwaschka testified that about 20 to 30 minutes into the procedure, she began to experience pain that "was worse than anything" she had ever felt before. She told the doctor to stop the procedure and sat up. A few minutes later, she lay back down and the doctor continued the peel. She asked the doctor to stop two additional times so she could take a break. As Dr. Carney completed the peel on the right side of Zwaschka's face, Jellison pointed to a spot on Zwaschka's right cheek that she believed he had missed. Dr. Carney applied the chemical to that area, even though he testified that he did not believe that he had missed the spot. Zwaschka testifiedthat, at the end of the procedure, Dr. Carney told her that he had been more aggressive than she wanted, so she could get her money's worth out of the procedure.

In the days following the peel, Zwaschka experienced pain, swelling, redness, and open wounds that wept fluid. She returned to Dr. Carney's office one week after the chemical peel, and Dr. Carney told her that her condition was not normal and that he was very concerned. Zwaschka cancelled her trip to Chicago and treated with Dr. Carney for several days. During these visits, Dr. Carney conducted "aggressive wound care." He soaked her face in wet gauze, discussed giving her a steroid injection, and prescribed medication. Dr. Carney and Zwaschka discussed scarring and the risk of infection in the open wounds. Dr. Carney explained that when Jellison pointed out the spot that he had missed during the peel, he may have overlapped the procedure and applied a second coat of the solution. Dr. Carney told Zwaschka that she should blame him rather than herself and that he had contacted his malpractice-insurance provider. The chemical peel had caused superficial second-degree burns that left Zwaschka with permanent scars on her right cheek, on her chin, and above her lip.

Zwaschka and her husband sued Dr. Carney and Skin Speaks in Hennepin County District Court, alleging medical negligence and civil battery. At the ensuing jury trial, Zwaschka's expert witness, Dr. Barry Resnik, defined the relevant standard of care as "what a reasonable dermatologist . . . would do to ensure a good result and the least possible side effects or complications in the procedure or treatment that I would render for a patient." He testified that Dr. Carney's treatment of Zwaschka fell below this standard of care for numerous reasons. First, Dr. Carney wrongfully relied on Jellison'srecommendation regarding the type of chemical peel that Zwaschka should receive, without examining Zwaschka and consulting with her himself. Dr. Resnik stated that "an esthetician should not be determining medium-depth chemical peel patients, and a physician should not be relying upon that decision without" further consultation. Second, Dr. Carney failed to discuss the procedure with Zwaschka for a sufficient period of time. Dr. Resnik testified that a reasonable dermatologist would spend 30 to 45 minutes discussing the risks of a medium-depth peel, and he faulted Dr. Carney for spending only a few minutes with Zwaschka before beginning the procedure. Third, Dr. Carney should have waited to schedule the peel until after Zwaschka returned from Chicago. Fourth, Dr. Carney did not inform Zwaschka of alternatives to the medium-depth peel. Fifth, Dr. Carney did not listen to Zwaschka when she told him to stop the procedure; rather, he gave her a short break and resumed the treatment. Dr. Resnik stated, "There is no medical reason why you cannot stop a peel at any stage." Sixth, Dr. Carney returned to the spot that Jellison believed that he had missed and treated it again. Dr. Resnik testified that the spot that Dr. Carney treated a second time "turned out to be one of the areas with the most significant scarring." Seventh, Dr. Carney failed to fully document Zwaschka's post-operative care. Finally, Dr. Resnik testified that he would not have performed a medium-depth chemical peel on Zwaschka: "A medium-depth chemical peel would not be at the top of my hit list for [her]". But during cross-examination, Dr. Resnik testified that he was not critical of the manner in which Dr. Carney applied the chemical.

Near the end of the third day of the trial, defense counsel moved for a mistrial on the ground that Zwaschka, who is an attorney, had testified about her professionalexperience working with doctors and about malpractice insurance. Zwaschka testified that Dr. Carney told her that he had contacted his malpractice-insurance provider. She also testified that, in her experience, injuries to patients often resulted from a doctor's failure to listen to his or her patient. The district court denied the motion but "caution[ed]" Zwaschka against "any more discussion about insurance or insurance companies or malpractice."

When the case was submitted to the jury, the district court instructed on three causes of action: medical negligence, battery, and failure to obtain informed consent. The district court provided the jury with a special-verdict form asking it to address Dr. Carney's liability on each of the three causes of action, as well as appropriate damages. The following day, the jury returned its special verdict, finding Dr. Carney liable for medical negligence but not liable for civil battery or failure to obtain informed consent. The jury awarded damages of approximately $1 million.

Thereafter, Dr. Carney and Skin Speaks moved for judgment as a matter of law (JMOL) or a new trial, arguing jointly that the evidence, particularly the medical expert's testimony, did not support the jury's verdict and that the district court had improperly admitted certain evidence. Zwaschka opposed these motions. She also filed proposed findings of fact, conclusions of law, and an order for judgment that imposed vicarious liability on Skin Speaks for Dr. Carney's negligence. Dr. Carney and Skin Speaks jointly opposed the proposed order. The district court denied appellants' motions. The court rejected the arguments that Zwaschka's medical expert had not provided sufficient expert testimony regarding Dr. Carney's deviations from the standard of care, finding that "[a]mple expert testimony was proffered . . . regarding Dr. Carney's alleged negligence." The court also rejected the arguments that Dr. Carney and Skin Speaks were entitled to a new trial. Finally, the court determined that Skin Speaks is vicariously liable for Dr. Carney's negligence, finding that Dr. Carney was both an actual agent of Skin Speaks and that he had apparent authority to act as Skin Speaks's agent. Dr. Carney and Skin Speaks appealed separately, and this court...

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