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Uram v. Nipper

Court of Appeals of Minnesota

July 22, 2013

Scott Uram, Appellant,
v.
Dr. Jeffrey H. Nipper, Respondent.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CV-11-17120.

Jon Hawks, Edina, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota (for appellant)

Mark R. Whitmore, Daniel R. Olson, Bassford Remele, A Professional Association, Minneapolis, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Stoneburner, Judge; and Rodenberg, Judge.

CONNOLLY, Judge

Appellant challenges the grant of summary judgment dismissing his three medical-malpractice claims, arguing that the district court erred in dismissing his claim of misdiagnosis on the ground that appellant's surgery was without harm or danger as a matter of law, his claim of delayed diagnosis on the ground that he failed to prove damages, and his lack-of-informed-consent claim on the ground that it was not properly disclosed. Because we see no error in the district court's dismissal of these claims, we affirm.

FACTS

In December 2008, appellant Scott Uram sustained an injury to his right ring finger. His family doctor referred him to an orthopedic surgeon, respondent Dr. Jeffrey Nipper. Respondent discovered a bony fragment and partial dislocation and recommended surgery to insert a pin and wire to hold the bone in the correct position. Appellant had signed an informed consent form on January 5, 2009; respondent performed the surgery on January 13, 2009.

Ten days later, at a postoperative appointment, respondent discovered that the bone was not in the correct position and further surgery would be necessary. On January 27, respondent began the second surgery but discovered that appellant had an infection, and the surgery could not be completed. Respondent removed the pin and wire, debrided the area, cultured the infection so it could be identified, and prescribed a general antibiotic. On January 30, appellant called the clinic to complain that his finger was hot and painful. By this time, the cultures of appellant's infection were complete, and appellant's family doctor looked at them, identified the infection, and prescribed an antibiotic specific to it. On February 3, appellant, who had previously been a patient at the Mayo clinic, transferred his care to that institution. Doctors at Mayo prescribed a six- week course of antibiotics against the infection, which healed. But the infection had caused loss of bone and muscle, the distal joint had fused, and appellant could no longer bend the tip of the finger.

In June 2011, a doctor in Atlanta, Georgia, signed an expert's affidavit asserting that respondent had committed medical malpractice. The affidavit stated:

[I]t was [respondent's] professional opinion and strong recommendation that he [respondent] should proceed with surgery to treat [appellant's] condition.
. . . [I]t is my firm and definite opinion that [respondent] has, in fact, deviated from the standard of good medical care. It is further my opinion that [respondent's] departure from that standard of care was the direct cause of [appellant's] subsequent injuries.
. . . [M]ore specifically, [respondent] was negligent for several reasons, first and foremost:
a. He misdiagnosed [appellant's] condition by determining that [appellant's] injury to his right ring finger consisted of a large bony fragment and that the joint was subluxed.
b. My review of the x-rays in conjunction with the radiologist's report clearly indicate[s] that [appellant] did not have, in any way, a subluxed joint and did not have a large bony fracture. Instead, he had a very small bony fragment of approximately four (4) mm.
c. [Respondent] did not offer an alternative, non-operative treatment of simple splinting, which would have resulted in [an] excellent outcome without any significant surgical risks or residuals.
d. Instead, [respondent] strongly recommended surgical treatment as the only reasonable alternative.
e. Because of the misdiagnosed condition of [appellant], [respondent] proceeded with surgical intervention that was, otherwise, unnecessary.
[S]econdly, the following facts show that [respondent] committed medical malpractice by failing to timely treat [appellant's] infection on his first post-op follow-up visit with [respondent].
a. Although the X-ray taken on January 23, 2009 clearly showed that the bone above the joint had nearly disappeared, having been destroyed by bone/flesh-eating bacteria, [respondent] failed to diagnose it as such and thus failed to inform [appellant].
b. Although these findings were clearly evident, [respondent] did not take any immediate action to deal with this severe infection.
The consequences and cost of [respondent's] negligence can be seen as follows:
a. [Appellant] suffered significant complications of the surgical treatment, including a severe infection of his finger that could well have been both limb threatening and life threatening.
b. [Appellant] learned that the name of the infection he had was "Enterbacter Aerogenes, " one of the most antibiotic resistant strains of bacteria.
c. As a result, [appellant] self referred himself for more specialized treatment and care at the Mayo Clinic in Rochester, MN.
d. [Appellant's] subsequent impairment, complications, and permanent disfigurement were the direct result of [respondent's] departure from the standard of care.
That to summarize in laymen's terms, if [appellant] had been treated by [respondent] in the manner [appellant] would have chosen, had he been properly informed, he would not have elected for any surgery whatsoever. As a result of the unnecessary surgery, [appellant] developed a severe life threatening infection that went untreated by [respondent] for more than four (4) days. As a result of the infection, [appellant] was rushed to the Mayo Clinic in Rochester, Minnesota for emergency treatment of the infection. Although the infection was eventually successfully treated, [appellant] now has permanent disfigurement and a significant loss of use of his right ring finger.
. . . [N]early all past medical costs as well as all present and future medical treatment costs can be attributed to [respondent's] negligence.

In August 2011, appellant filed the expert's affidavit and brought this action against respondent, alleging that "[his] medical injuries were directly and proximately caused by [respondent's] negligence . . . because the initial surgery where [appellant] obtained the infection was not necessary and never should have been performed." The deposition of appellant's expert was scheduled for May 9, 2012, in Atlanta.

On May 7, 2012, two days before the scheduled deposition, appellant presented respondent with 27 additional theories of malpractice, none of which had been mentioned in his complaint or in his expert's affidavit. Respondent's counsel travelled to Georgia for the expert's deposition, which was also to serve as his trial testimony. On direct examination, over respondent's objection, the expert testified on the newly alleged theories of malpractice. After 40 minutes of cross-examination, the expert said he had a scheduling conflict and left, and the deposition was continued.

On May 22, 2012, appellant filed a revised affidavit from his expert. It differed significantly from the original affidavit. Additions are underlined; deletions are stricken.

The medical records and deposition testimony from [respondent], as well as the affidavit and deposition testimony from [appellant] that I reviewed indicate that it was [respondent's] professional opinion and strong recommendation that [appellant's] finger required surgery and that he [respondent] should proceed with said surgery to treat [appellant's] condition on January 13, 2009.
. . . That based upon my review of [appellant's] records and his sworn testimony, it is my firm and definite opinion that [respondent] has, in fact, deviated from the standard of good medical care. It is further my opinion that [respondent's] departure from that standard of care was the direct cause of [appellant's] subsequent injuries.
. . . [M]ore specifically, [respondent] was negligent for several reasons, first and foremost:
a. He misdiagnosed [appellant's] condition by determining that [appellant's] injury to his right ring finger consisted of a large bony fragment and that the joint was subluxed;
b. My review of the x-rays in conjunction with the radiologist's report clearly indicate[s] that [appellant] did not have, in any way, a subluxed joint and did not have a large bony fracture. Instead, he had a ...

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