This opinion will be unpublished and

may not be cited except as provided by

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






Rebecca Klanderud-Overbaugh, as Trustee for the Heirs and Next of Kin of

Laura Klanderud, Deceased,





Unity Radiation Therapy Center, Inc., et al.,



Filed August 22, 2006

Reversed and remanded

Lansing, Judge


Hennepin County District Court

File No. WD01-017457


Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., 1850 West Wayzata Boulevard, P.O. Box 39, Long Lake, MN 55356-0039 (for appellant)


Rebecca Moos, Charles E. Lundberg, Tiffany M. Quick, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402(for respondents)


            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            The district court directed a verdict against medical-malpractice and negligent-nondisclosure claims asserted by Rebecca Klanderud-Overbaugh as trustee for her deceased sister’s heirs and next of kin.  Klanderud-Overbaugh appeals the district court’s determination, as a matter of law, that her sister had terminated her physician-patient relationship and that Klanderud-Overbaugh failed to establish a prima facie case of negligent nondisclosure.  Because the record and the applicable law fails to support a directed verdict on either basis, we reverse and remand.


            Following a left-breast mastectomy and chemotherapy, Laura Klanderud began radiation therapy at Unity Radiation Therapy Center, Inc. (Unity Radiation) in September 1997.  Unity Radiation employs two radiation oncologists, Dr. Ross Dickson and Dr. Jeffrey Herman.  Klanderud first consulted with Dr. Herman about radiation therapy in May 1997.  From September 29, 1997, to November 6, 1997, she received a course of radiation treatment on the left side of her chest. 

In the final four days of Klanderud’s radiation treatment, a reddened area developed on her left breast, and the area began weeping.  Because Dr. Herman was unavailable on the last day of her scheduled treatment, Klanderud met with Dr. Dickson.  He observed signs of a reaction, and Klanderud reported pain and redness.  He arranged for Klanderud to have a follow-up appointment with Dr. Herman in six weeks.  Klanderud did not keep the appointment.

Five days after completing her radiation treatment, Klanderud was hospitalized for what hospital physicians described as a “radiation burn” on her chest, resulting pain, and possible infection.  Before her hospitalization, she attempted three times to contact Unity Radiation because she was suffering from chills, fever, pain, and purulent discharge.  Dr. Herman received a copy of the hospital records.  A record of an examination by another physician on December 22 indicates that both the treating physician and Klanderud believed that the injury was a burn.  This record also indicates Klanderud’s intention to have a follow-up appointment with Dr. Dickson.  Dr. Herman received a copy of this record.

On December 29, 1997, six weeks after completing the radiation therapy, pictures of the left side of Klanderud’s chest showed that her injury was not healing as expected.  Another set of pictures shows that, on January 12, 1998, tissue on her chest was necrotic.  On January 14 Klanderud’s plastic surgeon sent a letter to physicians involved in her care, including Dr. Dickson and Dr. Herman.  He informed them that her wound had not made significant progress in healing and that he intended to remove necrotic tissue and perform a skin graft to cover the exposed wound. 

Klanderud met with Dr. Dickson the same day for the purpose of obtaining a recommendation on whether to proceed with a skin graft or the alternative treatment of a pedicle-flap procedure.  A patient record dated January 14, 1998, states that the plastic surgeons believed that Klanderud had second- and third-degree burns and needed a pedicle-flap procedure, that another doctor believed that she did not, and that she had come to Unity Radiation “for [an] opinion from Dr. Dickson.”  Dr. Dickson’s examination of Klanderud disclosed that fifteen to twenty percent of her breast mound was necrotic tissue.  The record contains no indication that he discussed the risks of the proposed treatments with Klanderud at this appointment.

On January 20, 1998, Klanderud’s plastic surgeon removed the necrotic tissue and performed a skin graft on Klanderud.  In March 1998 Klanderud met with her plastic surgeon who advised her that additional surgery, likely a pedicle-flap procedure, might be necessary.  Because the wound appeared to be better and because she retained hopes of reconstructive surgery, Klanderud elected not to have pedicle-flap surgery.  In May 1998 she was hospitalized because of her chest-wall wound and associated respiratory problems.  She was hospitalized again in July 1998 for the removal of necrotic tissue from her chest wall.  In October 1998 her medical oncologist removed fluid that had accumulated around her heart.  At the time of this procedure, her left arm was causing her pain and she could no longer use it because of nerve and tissue damage.  Klanderud’s medical records demonstrate that her chest-wall wound continued to deteriorate and that the passage of time was limiting her treatment options.  These records also indicate that either Dr. Dickson or Dr. Herman continued to receive copies of reports about Klanderud’s care. 

By December 1999 Klanderud’s poor health prevented her from being a surgical candidate, and the ongoing deterioration of her chest-wall wound reduced her physicians’ ability to find healthy tissue with which to perform a pedicle-flap procedure.  By January 2000 the extent of the dead tissue had begun to expose her ribs.  After being hospitalized for respiratory failure and inadequate nutrition associated with her wound, Klanderud died from blood loss in September 2000.  Her certificate of death indicates that the principle causes of death were a “severe chest wall wound from radiation necrosis” and “radiation therapy to chest wall.”

Rebecca Klanderud-Overbaugh, as the trustee and personal representative of Klanderud’s estate, sued Unity Radiation, Dr. Dickson, Dr. Herman, and other unidentified people involved in Klanderud’s treatment at Unity Radiation.  The complaint alleges that Unity Radiation and its physicians were negligent in Klanderud’s treatment and that Unity Radiation violated its duty to disclose information about risks and alternative procedures.  Unity Radiation moved for summary judgment on alleged deficiencies in the expert-witness affidavits.  The district court granted its motion, and this court reversed, concluding that the expert-witness affidavits were sufficient.  Klanderud-Overbaugh v. Unity Radiation Therapy Ctr., Inc., A03-1543, 2004 WL 1098717 (Minn. App. 2004).

On remand, the case proceeded to trial.  Klanderud-Overbaugh asserted that Unity Radiation overexposed Klanderud to radiation and presented machine malfunction as a possible explanation.  She also asserted a claim of negligent nondisclosure.  During the two-week trial, the court heard the testimony of the involved physicians as well as that of several experts for each party. 

At the close of Klanderud-Overbaugh’s case, Unity Radiation indicated that it had a motion for directed verdict but received permission to reserve discussion of its motion until the close of its case.  After hearing arguments, the court granted Unity Radiation’s motion for a directed verdict and dismissed the jury.  In its written order, the court concluded that Klanderud-Overbaugh’s two experts were not qualified to testify on the issue of machine malfunction, that Unity Radiation owed no duty to Klanderud because she voluntarily terminated her physician-patient relationship, and that Klanderud-Overbaugh failed to offer sufficient evidence of causation.  Finally, the court concluded that, “[i]n light of these holdings, there is no evidence from which a jury could conclude that there was a malfunction of the accelerator that resulted in an overdose of radiation.”  Klanderud-Overbaugh now appeals.


            A district court may grant a motion for a directed verdict when, as a matter of law, the evidence is insufficient to present a question of fact to the jury.  Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 405 (Minn. 1998).  On appeal from a district court’s order for directed verdict, we make “an independent determination of the sufficiency of the evidence to present a fact question for a jury determination.”  Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn. 1983).  In making this determination, we “accept as true all evidence in a light favorable to the adverse party.”  Id. 


The existence of a physician-patient relationship is a prerequisite for finding that a defendant doctor owed a duty to a plaintiff when the alleged negligence occurred.  Molloy v. Meier, 660 N.W.2d 444, 450 (Minn. App. 2003), aff’d 679 N.W.2d 711 (Minn. 2004).  When the parties dispute the date on which the physician-patient relationship ended, the issue is generally a question of fact for the jury to resolve.  Krause v. Farber, 379 N.W.2d 93, 96 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).  A physician-patient relationship may terminate when a patient fails to return to the physician’s office for follow-up care.  Ciardelli v. Rindal, 582 N.W.2d 910, 913 (Minn. 1998) (holding that plaintiff’s physician-patient relationship ended when plaintiff failed to return for recommended follow-up care).  But a physician-patient relationship may exist even when the patient does not visit the physician if the physician is being consulted by another physician involved in the patient’s treatment.  See Peterson v. St. Cloud Hosp., 460 N.W.2d 635, 638 (Minn. App. 1990) (determining that consensual physician-patient relationship existed between patient and physician he had not personally seen when another physician consulted with physician on patient’s behalf).

We conclude that the district court erred by determining that the evidence did not present a factual question for the jury on the existence of a physician-patient relationship at the time of the alleged negligence.  The district court concluded that no physician-patient relationship existed because Klanderud did not return to Unity Radiation for follow-up appointments and because she indicated displeasure with her treatment.  Theevidence shows that the last day of radiation treatment was November 6, 1997, and that, when Klanderud contacted Unity Radiation on November 11 about a green discharge from the treated area of her chest, she did not follow through on an office visit with Unity Radiation and was instead admitted to the hospital. 

But the undisputed evidence also shows that Klanderud attended an appointment with Dr. Dickson on January 14, 1998.  The negligent-nondisclosure claim is based on the failure of either of Unity Radiation’s oncologists to advise Klanderud of the risks of the proposed alternative treatments.  The patient record in evidence at the trial established that Klanderud sought this particular advice on January 14.  Thus, the record contains sufficient evidence for the jury to conclude that a physician-patient relationship existed until at least January 14, 1998, when Klanderud last consulted with a radiation oncologist at Unity Radiation.  This evidence is sufficient to permit the jury to conclude that a physician-patient relationship existed at the time of the alleged nondisclosure. 

We note that the record contains additional evidence that would enable a jury to determine that a physician-patient relationship existed beyond January 14, 1998.  Although the evidence demonstrates that Klanderud did not complete the MRI recommended by Dr. Dickson in January 1998 and did not attend any follow-up appointments, the radiation oncologists at Unity Radiation continued to receive reports on her treatment throughout the course of her treatment and did not inform Klanderud’s other physicians that they were no longer caring for her.  And both Dr. Dickson and Dr. Herman acknowledged that Klanderud never informed them that she no longer wished to receive their care.  Dr. Herman further testified that, regardless of whether a physician is in a position to personally treat a patient, the physician has an ongoing obligation to make the treating physicians aware of any complications that might affect the patient’s care.  The jury could reasonably infer from this evidence that Dr. Dickson and Dr. Herman were being consulted in Klanderud’s care and that Unity Radiation had a physician-patient relationship with Klanderud that extended beyond January 1998.  But, in any event, the evidence provides a basis for the jury to find that a physician-patient relationship existed at the time of the alleged negligent nondisclosure on January 14, 1998.


To establish a prima facie case of negligent nondisclosure, a plaintiff must prove (1) a physician’s duty to know of a risk or alternative treatment plan; (2) a duty to disclose the risk or alternative program; (3) a breach of the duty; (4) causation; and (5) damages.  Reinhardt, 337 N.W.2d at 95-96.  A plaintiff must use expert evidence to establish that a risk exists, that knowledge of the risk would be accepted medical practice, and that it is more probable than not that the undisclosed risk caused the harm.  Id. at 96. 

Although a claim of negligent nondisclosure resembles a claim of failure to obtain informed consent, the two claims are distinct and require a different analytical approach.  Kohoutek v. Hafner, 383 N.W.2d 295, 298-99 (Minn. 1986).  While an informed-consent case evolved from concepts of battery and focuses on a patient’s right to self-determination, a claim of negligent nondisclosure focuses on “the physician’s duty to inform the patient of the risks of certain medical procedures.”  Id. at 299.  Liability in an informed-consent case depends on proof that the patient was subjected to a procedure to which she did not consent.  Id.  In contrast, liability in a negligent-nondisclosure case arises from the independent failure to disclose the risks of proposed or alternative treatment.  Id.  Consent is not dispositive in cases of negligent nondisclosure.  Id.  Treatment, for purposes of the negligent-nondisclosure doctrine, is broadly construed and the doctrine may be extended to nontreatment situations because “[i]mportant decisions must frequently be made in situations in which medical care is given.”  Pratt v. Univ. of Minn. Affiliated Hosps. & Clinics, 414 N.W.2d 399, 402 (Minn. 1987) (quotation omitted).

At the outset, we note that Unity Radiation presents two arguments that do not relate to a claim of negligent nondisclosure and relate instead to alternative theories of liability.  First, Unity Radiation contends that Klanderud-Overbaugh’s claim is defeated by her inability to prove that the accelerator, the machine that administered the radiation, malfunctioned and overexposed Klanderud.  But Klanderud-Overbaugh’s claim that Unity Radiation overexposed Klanderud to radiation is independent of her claim for negligent nondisclosure, and evidence of a possible machine malfunction is irrelevant to the negligent-nondisclosure claim on appeal.  Second, Unity Radiation asserts that Klanderud-Overbaugh’s claim fails because the radiation therapy occurred before the alleged nondisclosure.  This argument assumes, however, that Klanderud-Overbaugh’s claims derive from a claim of battery without informed consent, rather than the distinct claim of negligent nondisclosure.  Klanderud-Overbaugh does not claim that Unity Radiation is liable because it did not receive informed consent from Klanderud before administering radiation.  Instead, she claims that Unity Radiation failed to disclose risks associated with the alternative procedures for treating complications that arose after radiation.

We now turn to whether Klanderud-Overbaugh presented sufficient evidence on each of these elements to establish a prima facie case that would withstand a directed verdict. The first element requires that the “physician possess the knowledge of a reasonably well-trained and knowledgeable physician practicing under the circumstances.”  Cornfeldt v. Tongen, 262 N.W.2d 684, 699 (Minn. 1977).  Even if the physician did not know the risk, he may still be liable if he should have known of the risk.  Id.  Viewing the evidence in the light most favorable to Klanderud-Overbaugh, the record indicates that the radiation oncologists at Unity Radiation had a duty to recognize the severity of Klanderud’s reaction to radiation therapy to know the risk of treating her with a skin graft, and to be aware of the alternative of a pedicle flap.

Klanderud-Overbaugh’s expert witnesses testified that Klanderud’s condition, as evidenced by her medical records and photographs of her wound throughout treatment, demonstrate that she had been overexposed to radiation.  They further testified that a reasonable radiation oncologist should have recognized the damage as radiation overexposure and known the related complications.  Although Dr. Dickson and Dr. Herman testified that they believed the injury was caused by multiple factors, they acknowledged that overexposure was a possibility.  In assessing the treatment options, Klanderud-Overbaugh’s expert witnesses testified that, regardless of the cause, a skin graft could not heal the wound because it could not bring the necessary blood to the area and the necrotic tissue would continue to deteriorate.

This expert testimony also indicates that accepted medical practice required Dr. Dickson and Dr. Herman to know the risk of delaying a pedicle-flap procedure and employing a skin graft.  Klanderud-Overbaugh’s experts indicated that a reasonable radiation oncologist would have been aware that, based on the rapid onset and the nature of Klanderud’s symptoms, she needed to have pedicle-flap surgery within three or four months of her last radiation treatment.  And Dr. Dickson and Dr. Herman both testified that they thought that, as of January 14, 1998, a pedicle-flap procedure was the best procedure to address Klanderud’s injury.  This evidence is sufficient to enable the jury to determine that the radiation oncologists at Unity Radiation knew or should have known of the risk of treating Klanderud’s injury with a graft and also of the alternative pedicle-flap procedure.

On the second element, we consider whether the evidence, viewed in the light most favorable to the plaintiff, creates a factual dispute about the existence of a duty to disclose the known risks.  A plaintiff may establish this element with evidence that “a reasonable person in what the physician knows or should have known to be the plaintiff’s position would likely attach significance to that risk or alternative” in deciding whether to undergo the procedure.  Reinhardt,337 N.W.2d at 96 (quotation omitted).  Viewing the evidence in the light most favorable to Klanderud-Overbaugh, Unity Radiation had a duty to disclose the risks associated with the proposed treatment.  A reasonable person in Klanderud’s position would likely have attached significance to information that she risked serious necrosis and probable death without a timely pedicle-flap procedure. 

The evidence suggests that, during the period in which Unity Radiation was in a physician-patient relationship with Klanderud, its radiation oncologists had a duty to inform Klanderud of the risks of choosing to have a skin graft and delaying the pedicle-flap procedure.  Klanderud-Overbaugh’s expert witnesses indicated that the standard of care in the medical community would have required a radiation oncologist to inform Klanderud and the other treating physicians that overexposure to radiation was a possible factor in her injury and that Klanderud faced the risk of severe necrosis and probable death if she did not have a pedicle flap.  They also indicated that, because other types of physicians lack experience and knowledge about complications arising from radiation exposure, the involvement of a radiation oncologist is important. 

The record contains a follow-up patient record from Unity Radiation, which demonstrates that the radiation oncologists at Unity Radiation were aware that the other treating physicians believed the injury was a burn rather than an injury resulting from overexposure to radiation.  The precise nature of Klanderud’s injury was crucial in assessing her treatment options; a skin graft can successfully treat a radiation burn, but cannot heal an injury resulting from overexposure to radiation.  Without this information, which the record shows Unity Radiation was in the best position to know, neither Klanderud nor her other physicians could adequately consider her treatment options.  Given the evidence demonstrating Dr. Herman’s and Dr. Dickson’s specialized knowledge about radiation complications, their knowledge about the administration of Klanderud’s radiation, and their knowledge of the other physicians’ erroneous assessment of Klanderud’s injury, the jury could reasonably conclude that the radiation oncologists at Unity Radiation had a duty to disclose information about the nature and severity of Klanderud’s injury and the associated risk of having a skin graft instead of a pedicle flap. 

The third element of negligent nondisclosure is breach of duty.  Dr. Dickson and Dr. Herman acknowledged that no one from Unity Radiation informed Klanderud that she may have been overexposed to radiation, that a skin graft could not effectively address her injury, and that she needed to have a pedicle-flap procedure performed within three or four months of completing her radiation treatment.  The record shows that Klanderud never received any information of a possible overexposure and was unaware that she had a limited time in which to receive an effective pedicle-flap procedure.  Thus, the jury could reasonably conclude that, if a duty to disclose existed, Unity Radiation breached this duty.

The fourth element, causation, is disputed by the parties.  Causation requires a demonstration that the undisclosed risk materialized in harm.  Id.  It also requires a showing that a “reasonable person in the plaintiff’s position would have refused the treatment had he been informed of the undisclosed risk.”  Id. (quotation omitted).  Viewing the evidence in the light most favorable to Klanderud-Overbaugh, she presented sufficient evidence to create a factual issue for the jury on causation. 

The record contains evidence on the first prong of causation, that the undisclosed risk materialized in harm.  The record shows that the risk of having a skin graft performed instead of a pedicle-flap procedure was that the graft would fail to resolve her health issues, that her tissue would experience additional necrosis, that she would lose the opportunity to have a pedicle-flap procedure, and that she would eventually die from the wound.  The record also indicates that a timely pedicle-flap procedure was more likely than not to have prevented her death. 

The district court, however, concluded that Klanderud-Overbaugh could not establish causation because Klanderud’s plastic surgeon testified that he would not have altered his treatment even if he had been aware of a possible overexposure to radiation.  This analysis is flawed in two ways.  Any obligation of Unity Radiation to disclose the risks to Klanderud was for the purpose of enabling her to adequately consider her treatment options and determine whether she needed a pedicle flap; no statement by her plastic surgeon alters her right to be informed about the risks of proposed treatment.  Furthermore, the record does not contain any information that indicated her plastic surgeon would not have suggested a more aggressive treatment if the radiation oncologists at Unity Radiation had explained the full impact of radiation overexposure and the likelihood that her tissue would sustain severe necrosis that would preclude a pedicle-flap procedure at a later stage.  To the contrary, Klanderud-Overbaugh’s experts testified that physicians who are not trained as radiation oncologists often do not understand the full effects of overexposure radiation and likely would have underestimated the degree of her injury.

Klanderud-Overbaugh also presented sufficient evidence to establish a factual issue on the second prong of causation, that a reasonable person in Klanderud’s position would have chosen to have the pedicle-flap procedure instead of a skin graft if made aware of the undisclosed risk.  The district court concluded that, because Klanderud declined to have the pedicle-flap procedure in March 1998, Klanderud-Overbaugh failed to establish a chain of causation.  This analysis is also flawed for two reasons.  First, her experts testified that Klanderud had a limited window of opportunity to obtain the pedicle-flap procedure and that, to be effective, she needed the procedure performed by February or early March 1998.  Consequently, her decision in late March not to have the procedure had no effect on causation.  By March she had already undergone a skin graft, which she mistakenly believed was capable of healing her injury, and she had quite possibly lost the opportunity to have a successful pedicle-flap procedure. 

Second, Klanderud-Overbaugh presented sufficient evidence to establish that a reasonable person in Klanderud’s position would have had the procedure if she had been informed of the seriousness of her condition and the importance of having a timely pedicle-flap procedure.  Although the record shows that she was concerned about the possibility that the pedicle-flap procedure would interfere with potential breast reconstruction, her decision likely would have changed if she knew that her injury would not heal and that she would likely die if she did not have the procedure.  Therefore, viewing the evidence in the light most favorable to Klanderud-Overbaugh, sufficient evidence exists to establish that, had she been informed of the risk of having a skin graft instead of a pedicle-flap procedure, Klanderud would have chosen to have the pedicle-flap procedure.

The final element is damages.  No party disputes that the alleged negligence resulted in damages.

Although Unity Radiation and the other defendants presented evidence that contradicts the testimony of Klanderud-Overbaugh’s experts and the medical evidence supporting her claim, we view the evidence in the light most favorable to Klanderud-Overbaugh to determine whether she presented sufficient evidence to support a contrary verdict.  The presence of conflicting evidence in the record does not require the entry of a directed verdict and instead creates fact issues for the jury.  See id. (explaining that, because court views evidence in light favorable to nonmoving party, “conflicting evidence creates jury issues”).  The district court therefore erred by directing a verdict disposing of Klanderud-Overbaugh’s negligent-nondisclosure claim.

            Reversed and remanded.

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