Mullins v. Morgan

Background

Gary Mullins, Jr. alleged that medical staff at Federal Medical Center, Rochester placed seven staples in his forehead after a wound opened during a fall. When Nurse Rachel Wolfe later removed the staples, she accidentally removed only five. Mullins repeatedly asserted that two staples remained, but the issue was not investigated further at that time.

About four months later, imaging showed that two staples were still in his head. Dr. Mark Morgan and Physician’s Assistant Karin Parsons removed one, but the other had moved too close to Mullins’s eye to be removed without surgery. The final staple was surgically removed at the Mayo Clinic fifteen months after Wolfe’s mistake. Mullins alleged that the delay caused headaches, fear and anxiety about losing his vision, pain, irritation, emotional distress, embarrassment, and facial disfigurement.

Mullins filed a claim against the United States under the Federal Tort Claims Act, which can make the federal government liable for injuries caused by negligent acts or omissions of its employees acting within the scope of their employment, when applicable state law would impose liability on a comparable private party. The government moved to dismiss or for summary judgment, arguing that Minnesota Statute § 145.682 required Mullins to serve expert affidavits supporting his medical-negligence claim.

Report and Recommendation and Objection

The magistrate judge determined that expert affidavits were not required for Mullins’s allegations that staff failed to verify the number of staples and failed to consult his medical records to verify that number. The magistrate judge directed Mullins to serve affidavits addressing allegations that staff failed to order imaging, failed to intervene timely to prevent surgery, and failed to arrange and refer him for surgery.

The government objected to the conclusion that expert affidavits were unnecessary for the first two allegations. The district court reviewed the objected-to portions of the recommendation independently and reviewed the remaining portions for clear error.

Court’s Analysis

Minnesota medical-negligence claims generally require proof of the applicable medical standard of care, a departure from that standard, and a direct causal connection between the departure and the injury. Expert testimony is usually needed to establish the standard of care and departure from it. But expert testimony is not required when ordinary people can use common knowledge to determine that medical treatment was negligent, including situations in which a medical device is left in a patient’s body.

The court concluded that it was premature to decide that § 145.682 applied to Mullins’s Federal Tort Claims Act claim. The claim effectively treated the government as the employer of the allegedly negligent medical staff. At this stage, Mullins might be able to establish a basic case of negligent treatment and care without expert testimony by showing that staff failed to remove all seven staples and that the retained staples directly caused his injury.

The court also said it was uncertain whether expert testimony would be necessary for the allegations concerning the failure to order imaging and the failure to intervene promptly to prevent surgery. A fuller record might later show that expert testimony is needed for some aspects of the claim, including the permanence or financial value of the injuries or the allegation concerning timely referral for surgery. The government may renew its request for expert affidavits if expert testimony later becomes essential.

Disposition

The court overruled the United States’ objection, accepted the report and recommendation as modified, denied the government’s motion to dismiss or for summary judgment, and struck as moot the order granting Mullins an extension of time to provide expert affidavits. The order did not decide whether the alleged medical negligence occurred or whether Mullins will ultimately prevail on his claim.