Tammi Broussard and Deborah Vazquez-Martinez v. The United States of America

Background

Leroy Krogstad served in the United States Marine Corps from 1967 to 1969 during the Vietnam War and was honorably discharged. On January 11, 2021, he was admitted to the Veterans Administration Medical Center in Minneapolis exhibiting confusion, slurred speech, and labored breathing. He was diagnosed with acute liver failure and encephalopathy. On January 12, VA staff placed him on a ventilator after his condition worsened. By January 20, he had been unconscious for several days, and VA staff informed family members that his brain was unlikely to ever recover.

On January 20, family members — including plaintiffs Tammi Broussard and Deborah Vazquez-Martinez (Mr. Krogstad's two oldest daughters), his ex-wife Susan Krogstad, and his sister and brother-in-law Sharon and Mike Bartone — met with VA staff. The family decided to extubate Mr. Krogstad and transition him to comfort care. Social worker Sara Lassig's notes from January 21 confirmed the plan was for extubation on January 22.

However, when VA staff met the morning of January 21, several believed extubation was planned for that day. ICU nurse Leslie Albrecht-Greco, aware only of Susan and one adult child, confirmed with them that they were ready, and respiratory therapist Mark Hawkins removed the breathing tube. Mr. Krogstad died at 8:40 p.m. on January 21, approximately five and a half hours after extubation. Tammi and Deborah were not present at the extubation but arrived afterward and spent time with their father before his death.

The VA's investigation found Nurse Albrecht-Greco had acted carelessly by directing Mr. Hawkins to remove the breathing tube without a physician order. Both were temporarily suspended; Nurse Albrecht-Greco later left the VA, and Mr. Hawkins received a formal reprimand. The VA held a disclosure meeting with Tammi and Deborah and apologized.

In November 2022, plaintiffs filed administrative tort claims with the VA, which were denied. They then filed this lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., asserting (1) negligence resulting in wrongful death and (2) medical malpractice. They alleged the VA caused Mr. Krogstad's death and that his heirs lost the counsel, guidance, aid, advice, comfort, and protection he would have provided.

Legal Framework

The FTCA waives the federal government's sovereign immunity (its general protection from being sued) for torts committed by federal employees, with liability assessed under the law of the state where the act occurred. Because the events took place in Minnesota, the court applied Minnesota law.

Under Minnesota law, a medical malpractice claim — treated as a form of negligence — requires proof of: (1) the applicable standard of care; (2) a departure from that standard; (3) that the departure directly caused the plaintiff's injuries; and (4) damages. These same elements apply to a wrongful-death claim based on malpractice.

Minnesota's Wrongful Death Act, Minn. Stat. § 573.02, subd. 1, allows two categories of damages: (1) damages suffered by the decedent before death (added by a 2023 amendment applicable to cases filed after enactment, which includes this case filed June 20, 2023); and (2) "pecuniary loss" — meaning financial and practical loss — suffered by surviving next of kin. Pecuniary loss is broader than just lost income; it includes reasonably expected future aid, advice, comfort, assistance, and protection from the decedent. However, purely emotional damages — grief, sorrow, and mental anguish — are not recoverable.

The Government's Motion for Summary Judgment

The government moved for summary judgment on three grounds: (1) plaintiffs could not prove the elements of malpractice or wrongful death; (2) plaintiffs could not show the alleged negligence caused compensable damages; and (3) plaintiffs were themselves substantially at fault. The court addressed only the damages argument, finding it dispositive.

Summary judgment (a ruling before trial that resolves a case when there is no genuine dispute of material fact and the moving party is entitled to win as a matter of law) is appropriate when the opposing party cannot produce evidence sufficient for a reasonable jury to rule in their favor.

Pecuniary Loss

The court found, as a matter of law, that Mr. Krogstad's next of kin suffered no recoverable pecuniary loss. The undisputed facts showed that by the time of the alleged negligent act, Mr. Krogstad had been unconscious and unresponsive for over a week, had no reasonable prospect of brain recovery, and was already scheduled to be extubated the very next day. The only reasonable inference from these facts was that if the extubation had not occurred on January 21, Mr. Krogstad would have remained unconscious until January 22 and been extubated as planned.

Given this, his family members could not reasonably have expected any future income, aid, advice, comfort, assistance, or protection from him. Plaintiffs offered no contrary evidence and cited no caselaw supporting pecuniary loss under similar circumstances.

The court rejected plaintiffs' argument that damages are always a jury question, explaining that while the amount of damages is typically a jury question, a court may grant summary judgment when there is no evidence of any compensable form of damages. The court also found that the harms plaintiffs described — being denied a final goodbye, the traumatic nature of the death, complicated grieving, and continued sorrow — constituted non-recoverable purely emotional damages indistinguishable from grief, sorrow, or mental anguish.

Damages Suffered by the Decedent Before Death

The court next considered whether Mr. Krogstad himself experienced compensable pain or suffering from the early extubation. The government's expert, Dr. Benjamin Henkle (board-certified in Internal Medicine, Pulmonary Disease, and Critical Care Medicine with a Masters in Public Health), acknowledged that family members observed gasping, thrashing, tears, and apparent discomfort, but explained these were involuntary physical responses common in unconscious patients that do not necessarily indicate pain. Plaintiffs offered no expert testimony to contradict this.

Family members testified to observations of movement and tears both before and after extubation, but the court found no basis to conclude these lay witnesses had specialized knowledge qualifying them to opine that Mr. Krogstad regained consciousness and experienced pain.

The court noted that Minnesota appellate courts have not definitively resolved whether expert testimony is required to prove an unconscious person experienced pain and suffering, and the parties did not brief the issue. The court ultimately declined to resolve this open question because the claim failed on causation grounds.

Causation

Even assuming the lay testimony could create a triable issue on pain and suffering, the court found the claim failed for lack of causation. Plaintiffs did not allege that the manner of extubation was negligent — only that it was performed one day too early. Causation in negligence requires comparing what actually happened to a hypothetical in which the negligent act did not occur: here, an extubation performed in the same manner, one day later.

Plaintiffs presented no evidence that Mr. Krogstad's body would have responded any differently had extubation occurred on January 22 instead of January 21. The government's expert, Dr. Henkle, specifically stated he had no reason to think the experience or response would have differed. Accordingly, no reasonable jury could conclude that the premature removal of the breathing tube — rather than the extubation itself — was a direct cause of any pain or suffering Mr. Krogstad experienced.

Disposition

Judge Menendez granted the government's motion for summary judgment and dismissed the case with prejudice.