This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1689

 

John Machacek and Jeannie Machacek,

individually and as parents and natural

guardians of Allison Machacek, their

minor daughter, et al.,

Respondents,

 

vs.

 

Heidi H. Cole, M.D.,

Appellant.

 

Filed July 26, 2005

Affirmed in part, reversed in part

Willis, Judge

 

Rice County District Court

File No. C8-03-863

 

Richard D. Allen, 110 West Grant Street, #24K, Minneapolis, MN  55403 (for respondents)

 

William M. Hart, Cecilie M. Loidolt, Damon L. Highly, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            In this appeal from a judgment notwithstanding the verdict (JNOV), appellant argues that the district court erred by granting respondents’ motion for JNOV and that the district court abused its discretion by alternatively granting respondents’ motion for a new trial in the event that this court reverses the JNOV.  Appellant additionally challenges the district court’s denial of her motion to dismiss and her motion for a directed verdict, arguing that respondents’ expert-witness affidavit did not meet the requirements of Minn. Stat. § 145.682 and that respondents’ expert was unqualified to provide an expert opinion.  We find that the district court did not err by denying appellant’s motion to dismiss and motion for a directed verdict and affirm those decisions.  But because we find that the district court erred by granting JNOV and abused its discretion by granting a new trial, we reverse.

FACTS

            On May 20, 1999, respondent Jeannie Machacek took her 14-year-old daughter, Allison Machacek, to appellant Dr. Heidi Cole for acne treatment.  Dr. Cole is a dermatologist who had treated both Jeannie and Allison Machacek before the May 1999 visit.  After Dr. Cole addressed the acne problem, the Machaceks inquired about a wart on Allison’s lower left eyelid.  Dr. Cole testified that she explained various wart-removal options and that the Machaceks chose to remove the wart with a chemical application.    

            There is substantial conflicting testimony as to what happened during and after the application of the wart medicine.  The parties agree that Jeannie Machacek called Dr. Cole about two hours after the Machaceks left Dr. Cole’s office and told Dr. Cole that Allison Machacek was experiencing intense pain around her eye.  Dr. Cole testified that she told Jeannie Machacek to take Allison Machacek to the emergency room, but Jeannie Machacek testified that Dr. Cole recommended giving Allison Machacek a pain reliever. 

The next day, Jeannie Machacek took Allison Machacek to see a family doctor, and he referred her to an optician, Dr. James Gutfleisch.  Dr. Gutfleisch’s notes indicate:

This 14 year old is brought in by her grandmother on an urgent basis with a painful red, irritated left eye.  She was referred by Dr. Meland for evaluation.  Yesterday she applied an anti-wart medication to her lid margin. . . .  Patient states she did rinse the eye out but the eye became continually painful throughout the evening.

 

During this visit, Dr. Gutfleisch diagnosed Allison Machacek as having a 40% corneal abrasion/chemical burn. 

             Jeannie and John Machacek, individually and on behalf of Allison Machacek, filed a lawsuit against Dr. Cole, alleging four acts of negligent medical treatment:  (1) Dr. Cole should have referred Allison Machacek to a specialist because the removal of a wart on the lid margin was outside her area of expertise, (2) Dr. Cole used Canthacur PS on Allison Machacek’s face despite warnings from the manufacturer, (3) Dr. Cole allowed wart medication to get into Allison Machacek’s eye, and (4) Dr. Cole failed to warn the Machaceks of the risk of serious injury.  At trial, they additionally alleged that Dr. Cole should have instructed the Machaceks to take Allison Machacek to the emergency room when Jeannie Machacek called Dr. Cole after the wart-removal procedure.

A jury found Dr. Cole not negligent.  Because it determined that Dr. Cole’s treatment of Allison Machacek had not fallen below the applicable standard of care, the jury made no findings regarding causation.  The Machaceks moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial.  The district court granted the Machaceks’ motion for JNOV and set aside the jury’s verdict that Dr. Cole was not negligent.  It observed that “the evidence, when viewed in its entirety, overwhelmingly supports [the Machaceks’] theory of the case.”  The district court also granted the Machaceks’ motion for a new trial “in the event that the JNOV were to be reversed on appeal.”  Dr. Cole’s appeal follows.

D E C I S I O N

I.

 

Dr. Cole first argues that the district court erred by granting the Machaceks’ motion for JNOV.  A district court should grant a motion for JNOV when, viewing the evidence in the light most favorable to the nonmoving party, the verdict is manifestly against the entire evidence or when, despite the jury’s findings of fact, the moving party is entitled to judgment as a matter of law.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  The decision to grant or deny a motion for JNOV is a question of law, which we review de novo.  Diesen v. Hessburg, 455 N.W.2d 446, 449 (Minn. 1990).  

When considering a motion for JNOV, the district court must take into account all of the evidence in the case, the court must view that evidence in a light most favorable to the verdict, and “the court may not weigh the evidence or judge the credibility of the witnesses.”  Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).  If a jury verdict has any reasonable evidentiary support, both the district court and this court must accept it as final.  Brubaker v. Hi-Banks Resort Corp., 415 N.W.2d 680, 683 (Minn. App. 1987), review denied (Minn. Jan. 28, 1988).

            Dr. Cole argues that the district court erred by granting the Machaceks’ motion for JNOV because the record contains evidence supporting the jury’s verdict that Dr. Cole was not negligent.  The jury did not reach the causation issue, so our review is limited to whether there is evidentiary support for the jury’s verdict of not negligent.  To prove negligence in a medical-malpractice case, a plaintiff must establish “the standard of care recognized by the medical community as applicable to the particular defendant’s conduct” and “that the defendant departed from that standard.”  Knuth v. Emergency Care Consultants, P.A., 644 N.W.2d 106, 111 (Minn. App. 2002), review denied (Minn. Aug. 6, 2002). 

            Substantial testimony supports the jury’s verdict.  Dr. Cole testified that the wart on Allison Machacek’s lower eyelid was 4 or 5 millimeters below the lid margin, where the eyelashes are.  She testified that as a rule she does not treat warts on the lid margin and that she refers patients with such warts to ophthalmologists.  Because Allison Machacek’s wart was not on the lid margin, Dr. Cole testified that the treatment she provided was “within the scope of [her] practice.”  She testified that she used the wooden end of a Q-tip to apply a small drop of Canthacur to Allison Machacek’s eyelid.  Although her notes indicate that she used Canthacur PS to treat Allison Machacek’s wart, Dr. Cole testified that she applied Canthacur to Allison Machacek’s eyelid and that she “automatically” wrote “PS” because she “used Canthacur PS fairly regularly.”  She also testified that Canthacur PS is frequently used in “off label” applications and that it can be applied to the same places as Canthacur. 

            Although both Jeannie and Allison Machacek testified otherwise, Dr. Cole’s testimony and medical records indicate that the wart medicine was applied directly to the wart and did not come in contact with Allison Machacek’s eye.  Dr. Cole also testified that she did not warn the Machaceks of the risk of corneal abrasion because she had never read about or heard of it happening as a result of the treatment that she provided. 

Dr. Cole’s expert witness, Dr. Jaime Davis, testified that despite the manufacturer’s warning, the use of both Canthacur and Canthacur PS to remove warts 4 to 5 millimeters below the eyelid margin is within the accepted standards of dermatology practice.  She testified that dermatologists are trained to apply wart medicine with the wooden end of a Q-tip because the application is more precise and the wooden end does not absorb the medicine.  Dr. Davis also testified that it is not standard dermatology practice to warn patients about the risks of corneal abrasion when removing warts from eyelids and that she had not heard or read about such an injury before.    Finally, Dr. Davis testified that irritation is a common side effect of removing warts with Canthacur and Canthacur PS. 

            Although there is also evidence in the record that supports a verdict in the Machaceks’ favor, the jury found that Dr. Cole was not negligent.  Dr. Cole offered evidence of the applicable standard of care recognized by the medical community and evidence that she did not depart from that standard.  The district court appears to have disregarded the evidence that the jury found credible in favor of evidence supporting the Machaceks’ claims.  This is error.  See Lamb, 333 N.W.2d at 855 (“[T]he court may not weigh the evidence or judge the credibility of the witnesses.”).  Because the record provides reasonable evidentiary support for the jury verdict, we conclude that the district court erred by granting the Machaceks’ motion for JNOV.

II.

            Dr. Cole next argues that the district court abused its discretion by granting the Machaceks’ motion for a new trial in the event that this court reverses the JNOV.  The decision to grant a new trial lies within the sound discretion of the district court and will not be disturbed absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  The district court may grant a new trial for, inter alia, “[a]ccident or surprise which could not have been prevented by ordinary prudence” or when the “verdict . . . is not justified by the evidence.”  Minn. R. Civ. P. 59.01(c), (g).

            The unfair surprise on which the district court based its decision to grant the Machaceks’ motion for a new trial was Dr. Cole’s trial strategy to use Dr. Gutfleisch’s notes and imply that something other than Dr. Cole’s own negligence caused Allison Machacek’s injury.  At trial, Dr. Cole’s counsel asked questions implying that the “she” in Dr. Gutfleisch’s notation that “[y]esterday she applied an anti-wart medication to her lid margin” referred to someone other than Dr. Cole.  The district court noted that Dr. Cole “did not include in [her] Answer to the Complaint a defense of contributory negligence on the part of [the Machaceks]” and that Dr. Cole “gave no indication that [she] would suggest, at trial, that Allison or her mother may have applied the chemical that caused Allison’s injury.  To that extent, it was unfair surprise.” 

Dr. Cole did not assert an affirmative defense of contributory negligence in her answer, and there is no indication that Dr. Cole raised the affirmative defense of contributory negligence at trial.  Instead, Dr. Cole, in her answer, denied that her conduct “in any way departed from accepted standards of practice in the care and treatment of Allison Machacek.”  Dr. Cole also stated in her answer that Allison Machacek’s injuries

were a result of conduct of others over whom [Dr. Cole] had no control nor right to control, or were a result of a natural medical problem, or disease process over which [Dr. Cole] had no control, or were a result of a medical complication, but were not a result of [Dr. Cole’s] medical care nor any alleged malpractice. 

 

Questions as to whom “she” referred in Dr. Gutefliesh’s medical record merely imply that someone other than Dr. Cole may have applied wart medication to Allison Machacek’s eyelid.  Dr. Cole did not attempt to affirmatively prove that someone else’s negligence contributed to the injury nor did she propose a jury instruction on contributory negligence.

The district court’s decision to grant a new trial based on surprise will rarely be reversed on appeal.  Zorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284 (Minn. App. 1992).  And the district court should only grant a newtrial when there is a strong probability that had the surprised party known of the evidence, the result would have been different.  Gunderson v. Olson, 399 N.W.2d 166, 168 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987).  Here, the evidence on which the district court based its finding of unfair surprise is a document that the Machaceks offered in support of their claims against Dr. Cole.  And even if Dr. Cole had expressly informed the Machaceks that she was going to infer that someone or something else caused Allison Machacek’s injury, there is not a strong possibility that the result would have been different.  By arguing that she did not cause the injury, Dr. Cole did not raise an affirmative defense.  Because we find no surprise, we conclude that the district court abused its discretion by granting the Machaceks’ motion for a new trial based on unfair surprise.

The district court also granted the Machaceks’ motion for a new trial because it determined that the verdict was not supported by the evidence.  As discussed above, the verdict has ample evidentiary support, and we conclude the district court abused its discretion by granting the Machaceks’ motion for a new trial.

III.

Dr. Cole also argues that the district court erred by denying her motion to dismiss and her motion for a directed verdict.  Before trial, Dr. Cole moved to dismiss the Machaceks’ claims, arguing that the expert-witness affidavits that Dr. Stephen Lane submitted, as required by Minn. Stat. § 145.682 (2004), were insufficient.  Dr. Cole also moved for a directed verdict at the close of the Machaceks’ case on the ground that the Machaceks did not establish a prima facie case of medical malpractice, arguing that Dr. Lane is incompetent to offer an expert opinion regarding the standard of care applicable to Dr. Cole and regarding Dr. Cole’s departure from the standard. 

The decision to dismiss a claim for failure to satisfy the witness-affidavit requirements in Minn. Stat. § 145.682 lies within the discretion of the district court.  Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn. 2002).  This is “a very deferential standard,” and we will not reverse absent a clear abuse of that discretion.  Id. (quotation omitted).

Dr. Cole argued to the district court, as she does here, that the affidavits “failed to set forth the dermatological standard of care and failed to outline the chain of causation between the alleged breaches of the standard of care and Allison’s injury.”  Dr. Cole argues that failure to satisfy the requirements of section 145.682 mandates dismissal with prejudice.

Section 145.682 requires that an expert-witness affidavit (1) disclose specific details concerning the expert witness’s expected testimony, including the applicable standard of care; (2) identify the acts or omissions that the plaintiff alleges violated the standard of care; and (3) include an outline of the chain of causation between the violation of the standard of care and the plaintiff’s damages.  Teffeteller, 645 N.W.2d at 428.  The affidavit must contain more than “empty conclusions” of causation.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 192–93 (Minn. 1990) (noting that general statements in an affidavit that the defendants “failed to properly evaluate” or “failed to properly diagnose” the patient were insufficient under section 145.682).  And it is not enough for the affidavit to simply repeat the facts in the hospital record.  Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996).  “The affidavit should set out how the expert will use those facts to arrive at opinions of malpractice and causation.”  Id. (quoting Sorenson, 457 N.W.2d at 192). 

Here, Dr. Lane’s affidavit describes specific details concerning his expected testimony, and it includes his opinion of the applicable medical standard of care.  Although Dr. Lane is not a dermatologist, as an ophthalmologist he has extensive scientific knowledge and practical experience with eyes and eye injuries.  This knowledge and experience render him qualified to testify to the standard of care in eye-related medical procedures.  See Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983) (noting that the competency of an expert witness depends on the witness’s scientific knowledge and practical experience with the subject matter).  The affidavit also identifies the acts and omissions that allegedly violate the standard of care and concludes that those acts and omissions caused Allison Machacek’s injury.  Although the affidavit does not provide a detailed chain of causation between the alleged departures from the standards of care and the injury, the relationship between the alleged departures and the injury is simple, rendering any more detail unnecessary.  The affidavit meets the statutory requirements of Minn. Stat. § 145.682, and we conclude that the district court did not abuse its discretion by denying Dr. Cole’s motion to dismiss.

Dr. Cole argues that because Dr. Lane is not a dermatologist, has never used Canthacur or Canthacur PS, and has practical dermatological experience only from medical school, he cannot offer an expert opinion on the applicable standard of care when using Canthacur or Canthacur PS or on whether Dr. Cole departed from that standard.  “In a medical malpractice action, the plaintiff ordinarily must offer expert testimony to establish the standard of care and the defendant’s departure from that standard.”  Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977).

The decision to admit expert testimony lies within the discretion of the district court, and we will not reverse unless the district court’s decision is based on an erroneous view of the law or it constitutes an abuse of discretion.  Benson v. N. Gopher Enters., 455 N.W.2d 444, 445–46 (Minn. 1990).  The district court has “considerable discretion in determining the sufficiency of foundation laid for expert opinion.”  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760–61 (Minn. 1998) (quotation omitted). 

            “The competency of a witness to provide expert medical testimony depends upon both the degree of the witness’ scientific knowledge and the extent of the witness’ practical experience with the matter which is the subject of the offered testimony.”  Reinhardt, 337 N.W.2d at 93.  Dr. Cole argues that Dr. Lane has no practical experience with the subject matter or procedure on which he provided an expert opinion.

Although Dr. Lane has never removed a wart with Canthacur or Canthacur PS, he is qualified to provide an expert opinion on the removal of warts from eyelids.  He has removed warts from eyelids using other procedures, and he has extensive scientific knowledge and practical experience with eyes and eye injuries.  He is, therefore, competent to offer an expert medical opinion as to the standard of care that Dr. Cole should have provided when removing the wart and whether she departed from that standard. We conclude that the district court did not abuse its discretion by concluding that Dr. Lane is competent to offer his expert opinion.

            Affirmed in part, reversed in part.



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