EMAIL TO A FRIEND COMMENT

 

Pretrial Order on Informal Neurologist and Surgeon Discussion Not Appealable


A woman injured her back in a car accident. The woman sought treatment from a neurological clinic. The neurologist referred the woman to a surgeon. The surgeon performed back surgery on the woman. The neurologist and her physician’s assistant (PA) met with the woman in the neurologist’s clinic on several occasions for post-operative care.

 

More than one year after the surgery and approximately two weeks after the woman’s last appointment at the neurologist’s clinic, the woman awoke from a nap, unable to move her legs or sit up in bed. The woman was taken to the hospital where she was diagnosed with complete paraplegia. The surgeon who performed the back surgery identified a bacterial infection and collapse of the vertebrae at the surgery site, but concluded that surgery to repair the problem was too risky.

 

The woman filed a medical malpractice action against the neurologist, the PA, and the neurological clinic, but not the surgeon. The complaint alleged that the neurologist, the PA, and the neurological clinic negligently allowed the infection to go undiagnosed while the woman was in their care, causing the woman’s vertebrae collapse and permanent paraplegia.

 

The neurologist, the PA, and the neurological clinic sought an informal discussion with the surgeon who performed the back surgery under Minn. Stat. § 595.02, subd. 5 (2016), which provided that when a patient waives the physician-patient privilege in a health care malpractice action, the waiver includes permission for “informal discussions” with health care providers. The woman authorized the informal discussion, but clarified that she would not allow the surgeon to answer any questions regarding (1) the standard of care of the neurologist, the PA, and the clinic, or (2) whether the negligence of the neurologist, the PA, and the clinic caused the woman’s infection, vertebral collapse, or paraplegia. The neurologist, the PA, and the clinic disagreed with those limitations. In response, the woman revoked her authorization.

 

The neurologist, the PA, and the clinic filed a motion to compel authorization of the informal discussion. The woman filed a motion for a temporary injunction “and/or protection,” i.e., a protective order, to limit the questioning during the informal discussion. The woman argued that the statute allowed a treating physician to discuss only the physician’s own treatment of the patient.

 

The Hennepin County District Court granted each motion in part. The trial court required the woman to authorize the surgeon to participate in the informal discussion, but restricted the questioning of the surgeon to his own treatment of the woman. The trial court characterized its order as granting the woman’s motion for a protective order, but stated it did “not reach or grant” her motion for a temporary injunction.

 

While an appeal regarding the protective order was pending, the parties and surgeon participated in an informal discussion. The surgeon offered the unsolicited opinion that the woman’s injury was due to fast-growing bacteria causing infection and spinal collapse within two weeks before the paraplegia. Effectively, the surgeon opined that the care provided by the neurologist, the PA, and the clinic was not negligent and did not cause the woman’s paraplegia.

 

The medical malpractice action proceeded to a jury trial. Over the woman’s objection, the trial court allowed the surgeon to testify as to the same opinion he had volunteered at the informal discussion. The jury found in favor of the surgeon, the PA, and the clinic.

 

The Minnesota Court of Appeals reversed the protective order. The appellate court concluded that the statute allowed the neurologist, the PA, and the clinic to ask the surgeon about their care of the woman and the cause of the injury.

 

After the Supreme Court of Minnesota granted review, the trial court denied the woman’s motion for judgment as a matter of law or in the alternative a new trial. The woman appealed the denial, as well as the judgment based on the jury verdict, to the appellate court. That appeal is pending.

 

The Supreme Court of Minnesota vacated the judgment of the appellate court regarding the protective order. The court held that the appellate court lacked jurisdiction to review the protective order because (1) it was not an injunction from which interlocutory appeal could be taken, (2) the court would not review the appellate court’s reversal of a nonappealable protective order under an appellate rule authorizing the appellate court to allow appeals from orders that were not otherwise appealable, and (3) the court would not exercise its discretion to review the appellate court’s reversal under a rule authorizing the Supreme Court to suspend requirements or provisions of appellate rules on application of a party or on its own motion.

 

The appellate court lacked jurisdiction to review the protective order because it was not an injunction from which interlocutory appeal could be taken. Although the neurologist, the PA, and the clinic specifically requested injunctive relief, the trial court issued only what it styled as a protective order and expressly declined to reach their motion for injunctive relief. The trial court did not consider the equitable factors required for granting or denying a motion for a temporary injunction. The trial court’s order did not grant or deny any substantive relief sought in the original medical malpractice complaint, but instead was more akin to the routine pretrial regulation of discovery and the parties’ litigation conduct. Pretrial procedural orders of this sort are not usually appealable. The court reasoned that because the trial court’s order was neither styled as, nor had the characteristics of, an injunction, the appellate court lacked jurisdiction to consider it.

 

The court would not review the appellate court’s reversal of a nonappealable protective order under an appellate rule authorizing the appellate court to allow appeals from orders that were not otherwise appealable. Rule 105 of the Minnesota Rules of Civil Appellate Procedures states that, “in the interests of justice the Court of Appeals may allow an appeal from an order not otherwise appealable pursuant to Rule 103.03.” Minn. R. Civ. App. P. 105.01. The rule applies to the appellate court. The woman did not ask the appellate court to exercise its appellate jurisdiction under this rule. The appellate court did not consider this rule as the basis for its appellate jurisdiction.

 

The court would not exercise its discretion to review the appellate court’s reversal under a rule authorizing the Supreme Court to suspend requirements or provisions of appellate rules on application of a party or on its own motion. Rule 102 states that:

 

In the interest of expediting decision upon any matter before it, or for other good cause shown, the Supreme Court or the Court of Appeals, except as otherwise provided in Rule 126.02, may suspend the requirements or provisions of these rules on application of a party or on its own motion and may order proceedings in accordance with its direction. Minn. R. Civ. App. P. 102.

 

The woman had not shown good cause for the court to suspend its rules of appellate procedure that generally disfavored interlocutory appeals. The trial court’s protective order did not trigger appellate jurisdiction. The court found that good cause was absent because whether the surgeon should have been allowed to testify and, if so, what parts of his testimony were admissible, were part of the woman’s ongoing appeal from the jury verdict.

 

The Supreme Court of Minnesota vacated the judgment of the appellate court that reversed the trial court’s protective order limiting the scope of discussion between the surgeon and physician to the surgeon’s actual treatment of the patient.

 

See: Howard v. Svoboda, 2017 WL 603601 (Minn., February 15, 2017) (not designated for publication).

 

See also Medical Law Perspectives, June 2016 Report: How Risky is Going to the Hospital? The Dangers and Liabilities of Healthcare-Associated Infections

 

See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who is Liable and Why?

 

See the Medical Law Perspectives November 4, 2014, Blog: New Back Pain Treatment Options Offer Hope, Require Caution

 

 

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