This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Denise Nichol DeYoe, as Trustee for the

next of kin of Kenneth James DeYoe, deceased, and

Denise Nichol DeYoe and Kenneth James DeYoe, individually,





North Memorial Health Care,



Camden Physicians, Ltd., et al.,



Filed August 1, 2000


Huspeni, Judge*


Hennepin County District Court

WD 97-019672



Stephen W. Cooper, Stacey R. Everson, Eric D. Bull, The Cooper Law Firm, Chartered, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401 (for appellants)


David D. Alsop, Elliot L. Olsen, Gislason & Hunter, L.L.P., P.O. Box 5297, Hopkins, MN  55343 (for respondent North Memorial Health Care)


William M. Hart, Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402-3788 (for respondents Camden Physicians, Ltd. and Dr. William L. Youmans)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Huspeni, Judge. 

U N P U B L I S H E D   O P I N I O N



            Appellant Denise Nichol DeYoe brought a medical malpractice action as next of kin to her deceased son, Kenneth James DeYoe, and on behalf of herself, against respondents North Memorial Health Care and William Youmans, M.D., alleging that the negligent care rendered by respondents during her childbirth resulted in the wrongful death of her newborn son and personal injury to herself.  Following a jury verdict in favor of respondents, appellant brought post-trial motions for a directed verdict, new trial, or JNOV, which were all denied.  Appellant argues that the trial court erred by (1) not granting her motion for JNOV on the issue of negligence against Dr. Youmans and North Memorial Health Care; (2) denying her attempt to introduce into evidence North Memorial Health Care’s hospital protocols regarding the use of the drug Pitocin; (3) denying her motion to strike the testimony of Dr. Youmans’ expert, Ruth Bolton, M.D., after she admitted that she did not know the standard of care; (4) granting respondents two peremptory challenges each when they did not establish differing or conflicting interests; (5) excluding and restricting the testimony of her expert witnesses regarding causation and nursing care negligence; and (6) allowing respondents to testify about matters not addressed in their expert disclosures.  We affirm.   


            On September 2, 1995, following a routine pregnancy, appellant Denise Nichol DeYoe was admitted at about 1:00 p.m. into respondent North Memorial Health Care’s hospital in spontaneous labor.  Her attending physician was respondent William L. Youmans, M.D., who is a family practice doctor with respondent Camden Physicians, Ltd.

            Although DeYoe’s labor started normally, her labor arrested and she was given the drug Pitocin, a drug that increases the rate and strength of uterine contractions and dilates the cervix.  During most of this time, DeYoe was monitored by Millie Schultz, a registered nurse.  Nurse Schultz increased the Pitocin dosage over the next several hours, but DeYoe still did not deliver her baby.  At North Memorial, nurses do not call the physician every time they increase Pitocin, but keep the physician informed concerning the progression of a patient’s delivery.  At approximately 8:20 p.m., DeYoe experienced a sudden onset of significant pain and there was a change in fetal heart rate.  Nurse Schultz attempted to find a position that would relieve DeYoe’s pain.  At 8:34 p.m., Nurse Schultz advised Dr. Youmans that DeYoe was experiencing serious problems with her delivery.  Dr. Youmans determined that there were major problems with the fetal heart rate and ordered that Pitocin be stopped and that oxygen be given to DeYoe.  Dr. Youmans determined that an Obstetrician/Gynecologist (Ob/Gyn) would have to be called to perform a cesarean section.  Because there was no Ob/Gyn present at North Memorial, one had to be called in.  An Ob/Gyn delivered Kenneth James DeYoe (K.J.D.) by cesarean section at approximately 9:21 p.m.  During this surgery, it was found that DeYoe’s uterus had ruptured and the placenta was abrupted from the wall of the uterus.  Although K.J.D. was born alive, he had extensive brain injuries and died on September 7, 1995, due to complications from oxygen deprivation caused by the uterine rupture.

            DeYoe brought a medical malpractice action, alleging that respondents were negligent in (1) failing to manage her augmented labor properly; (2) failing to monitor fetal and maternal status adequately; (3) failing promptly to recognize and interpret evidence of non-reassuring fetal rate patterns; (4) failure to intervene timely and appropriately in response to evidence of non-reassuring fetal heart rate patterns; and (5) failing to advise her of the risks associated with not intervening promptly and properly when non-reassuring fetal heart rate patterns were exhibited.  DeYoe contended that as a result of respondents’ negligence she suffered a uterine rupture and placental abruption, which caused injury to herself and the death of K.J.D.

            During a two-week jury trial, the jury heard conflicting expert medical testimony on whether Dr. Youmans and/or North Memorial’s nurses breached the standard of care owed to DeYoe and K.J.D.  At the conclusion of the trial, the jury was presented with two main questions:  (1) whether Dr. Youmans was negligent in failing to meet accepted medical standards in the care and treatment of DeYoe or K.J.D.; and (2) whether North Memorial, by and through its nurses, was negligent in failing to meet accepted medical standards in the care and treatment of DeYoe or K.J.D.  The jury returned a verdict in favor of respondents, answering no to both questions of negligence.  The trial court denied DeYoe’s post-trial motions for a directed verdict, new trial, or judgment notwithstanding the verdict.  This appeal follows.


I.          Judgment Notwithstanding the Verdict (JNOV)

            DeYoe argues that the trial court erred in denying her motion for JNOV on the issue of negligence because, in light of the totality of the evidence, no reasonable jury could have found for either Dr. Youmans or North Memorial.  We cannot agree.

            On review of a denial of JNOV, this court must affirm the trial court if any competent evidence tends to support the verdict.  Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).  This court must assume that testimony for the nonmoving party is credible and must also permit every reasonable inference to be drawn from the evidence in favor of the nonmoving party.  Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281 (Minn. 1983).  JNOV should be granted only when it would be impossible for reasonable minds to come to a different conclusion because the evidence is so overwhelmingly on one side.  Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).  

            Both sides presented expert testimony regarding whether Dr. Youmans and North Memorial, by and through its nurses, were negligent in failing to meet the accepted medical standards of care and treatment of DeYoe.  Steven Cruikshank, M.D., a gynecologic surgeon, and Chester Fox, M.D., a family physician, testified for DeYoe, concluding that respondents breached the standard of care by (1) failing to recognize multiple signs on the fetal monitoring strips indicating that the baby was not getting enough oxygen; (2) failing to discontinue the use of the drug Pitocin and administer oxygen when the fetal monitoring strips demonstrated that the baby was not doing well and there was a high resting uterine tone; and (3) failing to have an Ob/Gyn present at the hospital so that cesarean section could have been performed immediately when problems were encountered.  Additionally, Nurse Schultz admitted during her testimony that she increased DeYoe’s dosage of Pitocin three times during her delivery, without considering the risk of a uterine rupture.

            This court must affirm a trial court’s denial of a motion for JNOV if any competent evidence tends to support the verdict.  See Rettman, 354 N.W.2d at 429.  Ruth Bolton, M.D., a family physician called by Dr. Youmans, testified that (1) although DeYoe’s dosage of Pitocin was increased several times, the total dosage per hour was still very low; (2) the spontaneous rupture of a uterus in a woman who has not had a cesarean section is extremely rare; (3) the fetal monitoring strip did not demonstrate any ominous signs of trouble prior to the sudden rupture occurring at approximately 8:20 p.m.; and (4) when a woman’s uterus ruptures, the “odds are that you’re gonna lose the baby,” and the goal is to save the mother first.  Also, Edward Maeder, M.D., an Ob/Gyn called by North Memorial, testified that (1) Pitocin is a relatively safe drug used in more than 50% of all deliveries; (2) the standard of care did not require North Memorial to have an obstetrician on the premises when Pitocin was administered; (3) a uterine rupture without a prior cesarean section is very rare, occurring in only between .03 to .08 percent of all deliveries; (4) there is a very high mortality rate for the fetus in cases of a uterine rupture; (5) DeYoe’s uterine rupture was an “acute catastrophic event” and quicker action would not have made any difference; and (6) Nurse Schultz gave appropriate care to DeYoe and did not cause or contribute to the uterine rupture.

            The trial court denied DeYoe’s motion for JNOV on the basis that there was “conflicting expert testimony” presented concerning whether or not the standard of care was breached and that it could not grant JNOV because the jury decided to accept respondents’ experts’ testimony as opposed to DeYoe’s experts’ testimony.  Contrary to DeYoe’s contentions, the evidence in the record is not conclusive against the verdict.  Considering the contradictory expert testimony that was presented in this case, reasonable minds could differ as to whether Dr. Youmans and North Memorial, by and through its nurses, were negligent in failing to meet the accepted medical standards of care and treatment of DeYoe.  The evidence in the record was sufficient for the jury to reasonably conclude that neither Dr. Youmans nor North Memorial’s nursing staff was negligent in the care and treatment of DeYoe and her baby.  Therefore, we affirm the trial court’s denial of DeYoe’s motion for JNOV.  See Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975) (stating that unless “evidence is practically conclusive against the verdict,” or “reasonable minds could reach but one conclusion against the verdict,” the order denying motion for JNOV should be affirmed).   

II.        Motion for New Trial

            The granting of a new trial rests in the discretion of the trial court, and the trial court’s decision will not be reversed unless it is a clear abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

            A.        Hospital Protocols

            DeYoe argues that the trial court erred in prohibiting her from introducing into evidence North Memorial’s protocols regarding Pitocin use, or even referring to them as a physical document, when it allowed Dr. Youmans’ expert, Dr. Bolton, to use the protocols affirmatively to create the impression that North Memorial had developed strict standards and rules regarding the use of Pitocin and that these standards had been followed.  DeYoe argues that when she tried to demonstrate that respondents did not follow their own protocols, the trial court improperly curtailed questions and erred in not allowing her to introduce the protocols. 

            Absent an erroneous interpretation of the law, admitting or excluding evidence is within the trial court’s discretion.  Kronig v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  An appellate court will not disturb evidentiary rulings unless they constitute an abuse of the trial court’s broad discretion.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). 

            Minn. Stat. § 145.65 (1998) provides:

No guideline established by a review organization shall be admissible in evidence in any proceeding brought by or against a professional by a person to whom such professional has rendered professional services.


            Minn. Stat. § 145.65 is “designed to serve the strong public interest in improving the quality of health care” by protecting guidelines developed by certain health care review organizations.  Kalish v. Mount Sinai Hosp., 270 N.W.2d 783, 785 (Minn. 1978).  The privilege is given to peer review committees to assume ongoing discussions necessary to improve patient care.  In re Parkway Manor Healthcare Ctr., 448 N.W.2d 116, 118-19 (Minn. App. 1989), review denied (Minn. Jan. 18, 1990).  The statute also “encourages the medical profession to police its own activities with minimum judicial interference.”  Id. at 119.  The belief is that health care will be fostered if review committees can carry on discussions without the threat of malpractice and defamation actions.  Id. at 120.

            We conclude that North Memorial’s protocols regarding Pitocin use were established by a peer review organization within the meaning of Minn. Stat. § 145.65, because the guidelines were prepared by a committee of health care professionals for the purpose of providing a guide for the use of Pitocin in the induction of labor.  The record clearly shows that these protocols were approved by an Ob/Gyn committee, which was comprised of a combination of family physicians and Ob/Gyns who practice at North Memorial.  Moreover, we conclude that Dr. Youmans was a professional for purposes of Minn. Stat. § 145.65, therefore, the Pitocin protocols were initially inadmissible against him.  Also, since this case was brought against North Memorial under a theory of vicarious liability, based on the alleged negligence of one of its medical professionals, Nurse Schultz, we believe that the protocols were initially inadmissible against North Memorial.

             DeYoe makes a strong argument, however, that any privilege that existed under Minn. Stat. § 145.65 was waived when Dr. Youmans’ expert, Dr. Bolton, made numerous references to the hospital protocols in her testimony.  But, “entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Jennie-O Foods, Inc. v. Safe-Glo Products Corp., 582 N.W.2d 576, 580 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998).  Even if we were to conclude that the trial court erred in not permitting DeYoe to introduce the protocols themselves, she has failed to demonstrate that she was prejudiced by that error. 

            We note initially that DeYoe made no offer of proof regarding admission of the protocols.  The record reveals that the Pitocin protocols require nurses to “[s]top Pitocin and notify physicians if there is not uterine relaxation or decelerations between contractions.”  There is nothing in the record to indicate how admission of the protocols themselves would have impeached Dr. Bolton’s testimony, or more importantly, might have changed the result of the trial.  The protocols would not have on their face demonstrated the hospital’s failure to follow its own standards regarding Pitocin use.  Although DeYoe’s experts testified that respondents breached the standard of care by failing to stop the use of Pitocin when there was a high resting tone, respondents’ experts contradicted this testimony, stating that there was no pattern in the fetal monitoring strips prior to the uterine rupture that would have mandated the discontinuation of Pitocin and the starting of oxygen.    

            Further, the trial court allowed DeYoe to cross-examine Dr. Bolton using the information contained in the hospital’s protocols.  Specifically, the trial court ruled:

[A]ppellant may refer to the protocol on cross only through verbal questions.  The document may not be referred to, held up, or shown or in any other way admitted into evidence.  However, you may cross-examine the witness from the information contained in the protocol that the witness has stated to the jury that she relied on informing [sic] her opinion to a reasonable degree of medical certainty. 


Thus, although the jury did not have before it the protocol document itself, the scope of cross-examination permitted by the trial court was broad enough to allow DeYoe to inform the jury on whether, and to what extent, the conduct of hospital staff was inconsistent with protocol guidelines.

            B.        Motion to Strike

            DeYoe asserts that the trial court erred in denying her motion to strike the testimony of Dr. Bolton because she disqualified herself by admitting that she did not know what the applicable standard of care was. 

            “A witness qualified as an expert by knowledge, skill, experience, training or education” may testify to assist the jury.  Minn. R. Evid. 702.  Expert witnesses in a medical malpractice action must have both “sufficient scientific knowledge” and “some practical experience” with the subject matter of the proposed testimony.  Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977).  Determining expert witness competency and foundation for expert testimony “lies within the sound discretion of the trial court.”  Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990) (citations omitted).  Although an appellate court may reach another decision, it must affirm “absent a clear abuse of discretion.”  Id. at 446 (citation omitted).

            DeYoe does not directly attack Dr. Bolton’s credentials, but rather contends that she disqualified herself from testifying about the standard of care because she testified that there was no standard of care.  However, upon review of Dr. Bolton’s testimony, we agree with the trial court’s conclusion that Dr. Bolton never testified that she knew of “no standard” for family physicians, but rather testified that there is not just one standard applicable in all situations, but several standards of care and that there are multiple texts and guidelines that family physicians rely upon.  Therefore, the trial court did not clearly err in denying DeYoe’s motion to strike Dr. Bolton’s testimony. 

            C.        Peremptory Challenges

            DeYoe contends that the trial court erred in granting respondents four peremptory challenges, instead of the two normally allotted a defendant, because respondents did not allege differing or conflicting interests.  We disagree.

            On appeal, this court will determine whether the trial court abused its discretion in allowing multiple defendants additional peremptory challenges.  Hunt v. Regents of Univ. of Minn., 460 N.W.2d 28, 32 (Minn. 1990).  An appellant must show prejudice in order for this court to reverse for a new trial on grounds that the trial court granted an excessive number of peremptory challenges.  Cornfeldt, 262 N.W.2d at 705.

            The number of peremptory challenges a trial court may grant to the parties is governed by Minn. Stat. § 546.10 (1998).  Each party has two peremptory challenges with all defendants being counted as one party unless they have adverse interests, in which case they each may be allowed a maximum of two challenges.  Minn. Stat. § 546.10.  Adverse interests may be demonstrated when one defendant asserts an affirmative defense against another or when the plaintiffs assert different theories of liability against the defendants.  Hunt, 460 N.W.2d at 32-33.  It is not enough, however, that defendants in a civil trial are two separate entities, each wishing to “escape liability and prefer[ring] that the other suffer rather than itself.”  Fick v. Wolfinger, 293 Minn. 483, 486, 198 N.W.2d 146, 150 (1972) (citation omitted).    

            Here, potential for adversity existed because DeYoe asserted that Nurse Schultz failed to contact Dr. Youmans within a reasonable period of time and failed to shut down the Pitocin at an earlier stage, and that Dr. Youmans failed to contact an Ob/Gyn within a reasonable period of time.  Moreover, even if we were to conclude that the trial court erred, in order to warrant reversal, DeYoe would have had to demonstrate that she

exhausted [her] peremptory challenges and [had] suffered material injury from the action of the court, and that as a result thereof one or more objectionable jurors sat on the case, or for some other equally cogent reasons.


Shipka v. Helvig, 405 N.W.2d 248, 253 (Minn. App. 1987) (citation omitted), review denied (Minn. June 26, 1987).  DeYoe has failed to demonstrate how she was prejudiced by the trial court’s ruling granting respondents two peremptory challenges each.

            D.        Exclusion of Expert Testimony

            DeYoe claims that the trial court erred in excluding and restricting the testimony of her experts, Dr. Cruikshank, Dr. Fox, and Nurse Janet Youel, from testifying regarding the standard of care for the North Memorial nursing staff.

            The question whether to “exclude evidence rests within the broad discretion of the trial court.”  Uselman, 464 N.W.2d at 138 (citation omitted).  The trial court’s decision should not be disturbed on appeal unless it is based on an erroneous interpretation of law or constitutes an abuse of discretion.  Id. 

            DeYoe first asserts that the trial court erred in restricting her nursing expert, Janet Youel, from testifying that Nurse Schultz should have consulted with an obstetrician before administering the drug Pitocin, as well as that she should have contacted an obstetrician about DeYoe’s delivery problems.  The trial court, in restricting Youel’s testimony, determined that her employment experience was simply too limited.  Considering the wide discretion given to the trial court in making evidentiary rulings, we cannot conclude that the trial court erred.  Further, even if we were to assume that the trial court erred, DeYoe failed to demonstrate prejudice.  See Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 79-80, 220 N.W.2d 281, 285 (1974) (stating that before excluded evidence may be grounds for a new trial, the error must be prejudicial).  

            Respondents objected to Dr. Fox’s testimony regarding whether the actions of Dr. Youmans and North Memorial staff contributed to the cause of DeYoe’s uterine rupture, arguing that this opinion had not previously been disclosed, and because it was interjected in the middle of trial, respondent would not be able to cross-examine DeYoe’s obstetrician on the issue.  The trial court ruled that it would 

permit the deposition of Dr. Fox on the uterine rupture matter and [would] not permit that to be discussed with the jury prior to the deposition.  And the Court would have that deposition be at the plaintiff’s expense.  If [respondents feel] following that deposition there would be a requirement to cross-examine Dr. Cruikshank on this point, then that would be obtained.  Dr. Cruikshank’s presence and that examination either by deposition prior to a return to the Court would be at plaintiff’s expense and Dr. Cruikshank’s return to the Court would be at plaintiff’s expense.  So the Court notes it’s Friday.  You’ll have the weekend to make those depositions and contacts.


For whatever reason, DeYoe’s attorney chose not to depose Dr. Fox on this issue and voluntarily chose to abandon this line of questioning.  We cannot conclude that the trial court abused its discretion.

            E.        Assertions Unsupported by Legal Analysis

            In a one sentence assertion in DeYoe’s brief, she alleges that Dr. Cruikshank should have been allowed to testify about the standard of care for nurses and the harm caused by the Nurse Schultz’s negligence.  Also, DeYoe briefly asserts that the trial court erred in allowing respondents’ experts, specifically Dr. Meader and Nurse Lapham, to testify about matters that were not addressed in their expert disclosures when the trial court in contrast severely limited her own experts’ testimony.  These assertions are not supported by any citation, legal analysis, or demonstration of prejudice.

            It is this court’s policy to decline to address allegations unsupported by legal analysis or citation.  Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (citing Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971)) (“assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection”).  It would not be appropriate for this court to make assumptions about whether a ruling prejudiced DeYoe.  Therefore, because prejudicial error is not obvious to this court, we conclude that DeYoe has waived her right to appeal these issues.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.