Mills v. Mayo Clinic

Background

This medical-malpractice case was scheduled for trial on November 30, 2021. Kathleen Mills and Wilson Mills disclosed Dr. Trent Carlson as their sole expert. His initial report was served eight days after the court-ordered deadline, although the court had allowed the late disclosure.

Dr. Carlson initially stated that Ms. Mills’s December 1, 2015 surgery was complicated by Dr. Scott Kelley’s decision to drain her abscess before surgery. He attributed three later procedures to the alleged delay: an abdominal washout and closure procedure on December 4, 2015; a colostomy takedown procedure on July 26, 2016; and a washout and exploration procedure on August 5, 2016.

After defendants sought partial summary judgment, the court asked for clarification about the claimed medical expenses. In a supplemental report, Dr. Carlson stated that he could not say, to a reasonable degree of medical certainty, what increased costs resulted directly from the alleged failure to meet the standard of care. He also offered a new opinion that the alleged negligence caused an infection requiring drainage and recovery care. According to the supplemental report, that infection caused 13 previously undisclosed procedures between October 2016 and July 2018 and would require treatment averaging $65,534.28 per year for the rest of Ms. Mills’s life.

Medical-expense claim

Defendants argued that the plaintiffs could not recover the medical expenses associated with the three procedures because Dr. Carlson could not identify the portion caused by the alleged negligence. The plaintiffs responded that they should be allowed to seek the full expenses under the doctrines of spoliation and indivisible injury.

The court agreed with defendants. It held that medical-malpractice defendants are liable only for the portion of damages attributable to the alleged negligence, and that the plaintiff bears the burden of proving that portion rather than expenses attributable to a preexisting condition. The court found the spoliation doctrine inapplicable because the plaintiffs had not identified intentionally destroyed evidence. It also found the indivisible-injury doctrine inapplicable because that doctrine concerns combined tortious conduct by two or more actors, while this was a single-defendant negligence claim.

The court therefore granted defendants’ motion for partial summary judgment insofar as it sought dismissal of the plaintiffs’ claim for medical expenses associated with the December 4, 2015, July 26, 2016, and August 5, 2016 procedures.

Late expert opinion

Defendants also asked the court to exclude Dr. Carlson’s new infection-related opinions. Under Federal Rule of Civil Procedure 37(c)(1), information not timely disclosed under the discovery rules generally cannot be used at trial unless the failure was substantially justified or harmless. The court also stated that it could enforce its case-management deadlines under Rule 16.

The court found that the infection opinion was not included in the original report and could not reasonably be inferred from it. The plaintiffs did not explain why the opinion was absent from the original report, a rebuttal report, or their response to the summary-judgment motion. The court also found that the late disclosure—made about 60 days before trial, after defendants had disclosed their experts and prepared for trial—plainly harmed defendants.

The court granted defendants’ motion to exclude Dr. Carlson’s untimely disclosure. Dr. Carlson was precluded from offering an opinion that Ms. Mills experienced an infection caused by defendants’ alleged negligence or that the infection caused a recurring need for medical treatment, including the 13 procedures and future treatments described in the supplemental report.

Order

The court granted defendants’ partial summary-judgment motion insofar as it sought dismissal of the specified medical-expense claim, granted the motion to exclude the untimely expert disclosure, and ordered the matter to proceed to trial beginning with jury selection on November 30, 2021, at 9:00 a.m. Judge Susan Richard Nelson signed the order.