This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








Jane M. Harrington,

as Trustee for the Next of Kin of Patsy Sara Myers, et al.,





Regina Medical Center, et al.,



Allina Medical Clinic,

d/b/a "Allina Medical Clinic – Hastings,"

f/k/a "River Valley Clinic," "River Valley Clinic – Hastings,"

and/or "River Valley Clinic, Inc.," et al.,




Filed July 26, 2004

Reversed and remanded

Robert H. Schumacher, Judge


Dakota County District Court

File No. C0027354



Donald R. McNeil, Coleman, Hull & Van Vliet, PLLP, 8500 Normandale Lake Boulevard, Suite 2110, Minneapolis, MN 55437; and


James G. Schweitzer (pro hac vice), Schweitzer & Cincotta, L.L.P, 740 North Plankinton Avenue, Suite 724, Milwaukee, WI 52303 (for appellants)


David D. Alsop, Gislason & Hunter, L.L.P., P.O. Box 5297, Minnetonka, MN 55343-2297 (for respondents Regina Medical Center & Dr. Thomas R. McNiff)


Robert M. Mahoney, Carolin J. Nearing, Geraghty, O'Loughlin & Kenney, P.A., 1400 Ecolab University Center, 386 North Wabasha Street, St. Paul, MN 55102 (for respondents Allina Medical Clinic & Allina Health Systems)


            Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this medical malpractice action, appellants Jane M. Harrington, as trustee for the next of kin of Patsy Sara Myers, and Larry M. Myers, surviving spouse of Patsy Sara Myers, challenge the district court's grant of summary judgment in favor of respondents Allina Medical Clinic and Allina Medical System (collectively Allina), contending that they established that the negligence of Allina caused the wrongful death of decedent.  We reverse and remand.


            For purposes of summary judgment, the parties do not dispute the facts.  On the morning of December 23, 1999, 49-year-old Patsy Myers sought medical treatment at the emergency room of respondent Regina Medical Center, complaining of a fever, cough, and sore neck.  Emergency room physician Dr. Brendan Meyer treated Myers and noted that she had been sick with the flu for the previous week.  Dr. Meyer also performed a physical examination, obtained a chest X-ray and blood chemistry, and tested Myers's spinal fluid.  Dr. Meyer diagnosed Myers with a viral syndrome with fever and sent her home with instructions to rest, increase consumption of fluids, take Tylenol or ibuprofen as needed for pain, and take Robitussin CF for cough.  Dr. Meyer advised Myers to seek medical care if she was not better in three to four days or sooner if her condition worsened.

            On December 24, 1999, Myers called Allina Medical Clinic and informed an unidentified clinic employee that despite her treatment at Regina the day before, she was still very sick.  At the time, she was too weak to stand.  The clinic employee told her that because it was 4:30 p.m. on Christmas Eve and because she only had the flu, she should take Tylenol and drink fluids.  Myers did not seek medical treatment, and Harrington and Larry Myers contend she did not do so because of this telephone conversation. 

            On Saturday, December 25, 1999, at approximately 7:30 p.m., Myers again sought medical treatment at Regina, complaining of weakness and breathing difficulty.  While at Regina, Myers also developed nausea.  Emergency room physician respondent Thomas Raymond McNiff, M.D. treated Myers.  Dr. McNiff noted that Myers had been at Regina two days earlier and that Regina had performed a "full work-up" at that time.  He also noted that Myers was a "[m]elodramatic white middle-aged female" who was not in "respiratory distress."  Dr. McNiff diagnosed Myers with an upper respiratory infection, which he indicated was likely influenza, and advised her to increase her consumption of fluids, take Advil for fever and aches, take Compazine for nausea, and take Percocet for pain or cough.  He also advised her to get rechecked by her own physician on Monday or return to Regina earlier if she experienced new or worsening symptoms.  Myers was discharged at approximately 11:25 p.m. 

            On December 26, 1999, at approximately 10 p.m., Myers called 911 and an hour later, an ambulance delivered her to Regina's emergency room.  Emergency room physician Dr. Aubrey Schock treated Myers, noting that Myers's color was "very, very pasty," and Myers had been feeling ill for several days with a cough, viral symptoms, and back pain.  Shortly after admission, emergency room staff discovered that Myers's blood pressure was very low and her temperature was 93.5 degrees.  Emergency room staff attempted to replenish Myers's fluids and ordered laboratory tests. 

            While at Regina's emergency room, Myers went into a "full code situation" and died.  An autopsy revealed that Myers died from acute myocarditis, a viral infection and inflammation of the muscle tissue of the heart.  Myocarditis can be effectively treated with steroids.

            Harrington and Larry Myers filed suit against Regina, Allina, and Dr. McNiff, alleging that when Myers called Allina on December 24, 1999, the clinic should have advised Myers to seek immediate medical treatment, immediately treated or hospitalized Myers, or made arrangements for Myers to receive immediate medical treatment.  Harrington and Myers contend that if Myers had received medical treatment on December 24, 1999, the myocarditis would have been diagnosed and successfully treated.  They also alleged that Regina negligently failed to diagnose and treat Myers's myocarditis on December 25 and December 26, 1999.

            Allina moved for summary judgment.  In support of their motion opposing summary judgment, Harrington and Myers offered the expert opinions of three doctors and one registered nurse.  Two of the three doctors opined that Myers died from myocarditis.  They agreed that she contracted myocarditis at least 48 hours prior to her death, and it progressed until she died. They further opined that Allina should have advised Myers to seek medical assistance in an emergency room on December 24, 1999, or it should have hospitalized Myers, and its failure to do so constituted a breach of the applicable standard of care.  In addition, the experts agreed that her condition was not irreversible, and had Myers received proper medical treatment on December 24, 25, or 26, she could have survived and lived a normal life.  Specifically, one expert stated that the failure to properly treat Myers on December 24 or 25 was a substantial contributing cause of her death.

            The district court granted Allina's motion for summary judgment.  The court reasoned that Allina's alleged failure to advise Myers to seek medical treatment was not a direct cause of her death.  According to the court, Myers eventually did seek medical treatment, and her condition was still treatable at this time.  "In other words, she did the act that Allina (allegedly) negligently failed to advise her to do."  The court also noted that none of Harrington and Myers's experts stated that, but for the clinic's negligence, Myers would be alive. 


            On appeal from summary judgment, an appellate court determines whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

            To establish a prima facie case of medical malpractice, a plaintiff must show by expert testimony the applicable standard of care, the defendant breached that standard, and the breach was a direct cause of the plaintiff's injuries.  Id.  A direct cause is defined as "a cause that had a substantial part in bringing about the (collision) (accident) (event) (harm) (injury)."  4 Minnesota Practice, CIVJIG 27.10 (1999).  Minnesota law uses the terms "direct cause," "proximate cause," and "substantial cause" interchangeably.  Id.  Minnesota courts reject the "but for" theory of causation.  Harpster v. Hetherington, 512 N.W.2d 585, 586 (Minn. 1994).  The substantial factor rule was developed primarily for cases in which application of the but for rule would allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result.  Fehling v. Levitan, 382 N.W.2d 901, 904 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986).

            To satisfy the direct cause element in medical malpractice actions, the plaintiff must present expert testimony establishing that it is more probable than not that the damages resulted from the malpractice.  Harvey v. Fridley Med. Ctr., 315 N.W.2d 225, 227 (Minn. 1982).  Failure to present such evidence mandates dismissal, either by summary judgment or directed verdict.  Leubner v. Sterner, 493 N.W.2d 119, 121 (Minn. 1992).  This rule is premised on a concern that a jury should not base assessment of liability upon speculation as to the possible causes of a plaintiff's injury.  Id. 

            Harrington and Myers argue that the district court erred in determining that Allina did not directly cause Myers's death, contending that their expert affidavits establish that the negligence of Allina and the negligence of Regina were coinciding causes.  We agree.  Coinciding causes are direct causes that occur contemporaneously and unite to cause injury that either alone would have caused.  Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry., 146 Minn. 430, 440-41, 179 N.W. 45, 49 (1920); Restatement (Second) of Torts § 432(2) (1965).  Here, Harrington and Myers's experts opined that Allina or Regina could have effectively detected and treated Myers's myocarditis but negligently failed to do so.  The experts concluded that Allina's or Regina's negligence alone would have been sufficient to cause Myers's death.  Therefore, we conclude that Harrington and Myers's expert affidavits establish, at least for purposes of a summary judgment motion, that Allina's negligence was a coinciding and direct cause of Myers's death.    

            Allina argues that in order to establish causation, Harrington and Myers "must establish that [Myers's] condition was not treatable and had become irreversible by the time she did seek treatment at the hospital on December 25, 1999."  We disagree.  Although Allina contends that the doctrine of superseding cause is irrelevant in the present case, its entire argument relies on the fact that Myers's condition was still treatable after December 24, 1999, and that Regina negligently treated her after this date. Therefore, Allina essentially argues that Regina's subsequent negligence was a superseding cause of Myers's death. 

            The doctrine of superseding cause breaks the chain of causation set in operation by the original act of negligence and insulates the original tortfeasor from liability.  Lofgren v. Pieper Farms, 540 N.W.2d 834, 837 (Minn. 1995).  An intervening cause is a superseding cause when four elements are satisfied:  (1) it happened after the original negligence; (2) it did not happen because of the original negligence; (3) it changed the natural course of events and made the result different from what it would have been; and (4) the original tortfeasor could not have reasonably anticipated this event.  4 Minnesota Practice, CIVJIG 27.20 (1999); Canada by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997). 

            In the present case, the district court concluded that Allina's failure to advise Myers to seek medical treatment on December 24 was not a direct cause of her death.  The court reasoned that Myers eventually did seek medical treatment, "the act that Allina (allegedly) negligently failed to advise her to do," and she was treatable when she sought the subsequent treatment.  The court also reasoned that none of Harrington and Myers's experts opined that "but for Allina's negligent failure to advise, [Myers] would be alive."  The court concluded that the "current state of the evidence is that if Allina had done what it should have done, [Myers] would have done what she eventually did, and death would still have resulted."  The district court's analysis clearly indicates that the court determined that Allina did not cause Myers's death because Regina acted negligently after Allina acted negligently, and Myers died after Regina acted negligently.  Essentially, the district court determined that Allina's negligence did not cause Myers's death because Regina's negligence was a superseding cause.

            It appears the district court misconstrued the scope of Harrington and Myers's claims against Allina.  Harrington and Myers do not merely claim that Allina breached the applicable standard of care by failing to advise Myers to seek medical treatment.  Instead, they argue that, as established by their expert affidavits, Allina breached the standard of care and thereby caused Myers's death by (1) failing to immediately hospitalize Myers on December 24, 1999, (2) failing to make arrangements for a physician to immediately examine and treat Myers, (3) failing to make arrangements for Myers to proceed immediately to the Allina medical clinic or an alternative emergency room for immediate medical attention, (4) providing inaccurate information to Myers about how she should treat her worsening medical condition, (5) failing to inquire into Myers's recent medical history, and (6) refusing immediate and appropriate medical care  merely because it was 4:30 p.m. on Christmas Eve.

            It also appears the district court improperly determined that Regina's negligence was a superseding cause of Myers's death.  See Fish v. Los Angeles Dodgers Baseball Club, 56 Cal. App. 3d 620 (Cal. Ct. App. 1976) (holding that hospital's negligence in failing to perform surgery was not superseding cause of boy's death where physician who had treated boy earlier also acted negligently).  The elements of superseding cause have not been satisfied; most notably, there is no evidence that Regina's negligence turned aside the natural sequence of events and produced a result that would not otherwise have followed from the original negligence.  Indeed, Regina's negligence produced the same result that Allina's alleged negligence produced – death by myocarditis.  Therefore, because Harrington and Myers established that Allina's negligence was a coinciding cause of Myers's death and because it has not been established that Regina's negligence was a superseding cause, we conclude that the district court's grant of summary judgment in favor of Allina was improper.

            Reversed and remanded.

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