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Bothun v. Martin LM, LLC

Court of Appeals of Minnesota

May 13, 2013

Leroy Bothun, Trustee for the Next of Kin of Elda Bothun, Appellant,
Martin LM, LLC d/b/a Martin Luther Care Center, et al., Respondents.


Hennepin County District Court File No. 27-CV-11-15095

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, St. Louis Park, Minnesota; and Mark R. Kosieradzki, Joel E. Smith, Kara Rahimi, Kosieradzki Smith Law Firm, LLC, Plymouth, Minnesota (for appellant)

Rebecca Egge Moos, Charles E. Lundberg, Shanda K. Pearson, Bassford Remele, P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Smith, Presiding Judge; Kalitowski, Judge; and Judge, Stoneburner.

SMITH, Judge

Appellant challenges the dismissal of his claims arising from his wife's death while she recovered from surgery at a rehabilitative care center. Appellant contends that respondents' delay and negligence in providing emergency medical care to his wife caused her death. Respondents moved for summary judgment or dismissal, and appellant subsequently moved to amend his complaint to add a request for punitive damages. The district court granted respondents' motion for summary judgment and dismissal pursuant to Minn. Stat. § 145.682, concluding that appellant's expert affidavit failed to detail a sufficient chain of causation between respondents' care and the patient's death and that appellant's claim for direct corporate medical negligence is not recognized in Minnesota. The district court also denied appellant's request to amend his complaint for punitive damages. We affirm.


In late 2008, decedent Elda Bothun (Ms. Bothun) was diagnosed with an abdominal aortic aneurysm that required surgery. Ms. Bothun underwent preoperative testing that revealed heart problems. In preparation for the surgery, Ms. Bothun had stents inserted into her heart to relieve the artery blockage and was prescribed blood thinners. Dr. Peter Alden performed the abdominal surgery on January 13, 2009. Dr. Alden noted that Ms. Bothun experienced "some renal ischemia and postoperatively . . . some transient hypotension, " which suggested a 32-minute loss of blood flow to the kidneys. The remainder of Ms. Bothun's hospital stay was classified as "uncomplicated." On January 18, 2009, Dr. Alden discharged Ms. Bothun to respondent Martin Luther Care Center (MLCC) for rehabilitative treatment. Ms. Bothun was prescribed blood pressure and pain medications and was utilizing supplemental oxygen on an intermittent basis.

The events that transpired from Ms. Bothun's admittance to MLCC on January 18 through the early morning hours of January 19 are the basis of this dispute. The undisputed facts are: (1) when Ms. Bothun's husband left MLCC on the evening of January 18, he indicated that she "looked great"; (2) Ms. Bothun's condition significantly worsened sometime after 3:00 a.m. on January 19; (3) at 4:36 a.m. the Bloomington Police Department received a phone call regarding Ms. Bothun's condition; (4) an ambulance arrived at 4:42 a.m., and emergency medical technicians (EMTs) initiated cardiopulmonary resuscitation (CPR); (5) the EMTs estimated that Ms. Bothun had been "down" for at least 20 minutes; and (6) Ms. Bothun died at 5:05 a.m.

The remaining facts regarding the night of Ms. Bothun's death are disputed. Meaza Abayneh, the nurse directly responsible for Ms. Bothun's care, and Elijah Mokandu, who supervised Abayneh, are the only two witnesses capable of establishing a timeline. The record demonstrates that at 1:35 a.m. Abayneh noted that Bothun was alert, oriented, and able to communicate her needs. According to medical charting and a plurality of Abayneh's statements, at 3:00 a.m. Abayneh discovered that Ms. Bothun was short of breath, restless, tossing from side to side, pale, and had a hand on her chest.[1]When Abayneh was unable to obtain a blood pressure reading, she considered the situation an emergency and ran to inform Mokandu. While en route to the west wing of the facility, she located nitroglycerin and a manual blood pressure cuff. When she returned to Ms. Bothun's room, she noted that Ms. Bothun's status had "totally changed, " as she was unresponsive but still breathing and maintaining a pulse. Mokandu arrived with supplemental oxygen and told Abayneh to call 911. Abayneh ran to the nurses' station and called the police.[2] It is undisputed that the call to the Bloomington Police Department occurred at 4:36 a.m.

Appellant Leroy Bothun (Bothun), Ms. Bothun's husband, subsequently commenced this wrongful-death action, alleging ordinary and professional negligence and asserting direct corporate liability on the part of MLCC. To comply with Minn. Stat. § 145.682, Bothun secured an expert affidavit of Dr. Alden, the same doctor who performed the abdominal surgery on Ms. Bothun, to establish a causal chain between respondents' actions and Ms. Bothun's death. Dr. Alden opined that Ms. Bothun likely suffered from one of three conditions and that, had she received treatment prior to 3:30 a.m., it was more probable than not that she would have survived. Respondents moved to dismiss the action with prejudice pursuant to Minn. Stat. § 145.682 "and/or for Summary Judgment" arguing that Dr. Alden's affidavit failed to meet statutory requirements. Bothun subsequently moved to amend his complaint to include a claim for punitive damages.

The district court dismissed the action with prejudice. Despite an investigation by the Minnesota Department of Health that found various actors neglectful, the district court concluded that Dr. Alden's affidavit was too conclusory to sustain a wrongful-death action. Specifically, the district court noted that "Dr. Alden fails to explain why 3:30 a.m. is the critical time for emergency treatment for each of Ms. Bothun's probable conditions." The district court proceeded to dismiss the corporate-liability claims because it determined that Minnesota law does not recognize such a cause of action. Finally, the district court ...

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