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Vacik v. Park Nicollet Clinic

Court of Appeals of Minnesota

August 26, 2013

Steven Vacik, et al., Appellants,
v.
Park Nicollet Clinic, Respondent.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CV-11-2862

Teresa Fariss McClain, Hallberg & McClain, P.A., St. Paul, Minnesota (for appellants).

William M. Hart, Rodger A. Hagen, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota (for respondent)

Considered and decided by Kalitowski, Presiding Judge; Chutich, Judge; and Harten, Judge. [*]

CHUTICH, Judge

In this medical-negligence action, appellants Steven and Dawn Vacik challenge the district court's denial of their motion for a new trial following a jury verdict in favor of respondent Park Nicollet Clinic. The Vaciks contend that the district court abused its discretion by prohibiting closing argument concerning a medical record admitted into evidence. Because no abuse of discretion occurred, we affirm.

FACTS

In 2006, appellant Steven Vacik suffered from chronic sinus infections and sought treatment from Dr. Steven Connelly, an otolaryngologist employed by Park Nicollet Clinic. Dr. Connelly discovered that Vacik's sinuses were completely blocked, but neither his visual examination nor later CT scans showed any nasal polyps.[1] Dr. Connelly recommended that Vacik undergo functional endoscopic sinus surgery to clear his sinuses.

Immediately after surgery, Vacik experienced pain and restricted vision in his right eye and numbness from his right lower eyelid down to his mouth. One week later he was still experiencing double vision and restricted movement of his right eye along with facial numbness and sensitivity to light. Vacik underwent another surgery that revealed a large defect in his orbital floor and found that a "large amount of orbital fat" had prolapsed into the hole. In other words, there was a large hole in the thin bone separating Vacik's eye socket from his maxillary sinus, and tissue surrounding the eye had fallen through the hole. An ophthalmologist repaired the bone but Vacik "continued to experience double vision, blurry vision, infraorbital nerve anesthesia, and significant pain."

Vacik sued Park Nicollet Clinic, claiming that Dr. Connelly negligently performed the endoscopic sinus surgery and that this negligence caused the problems he experienced with his eye. Vacik's wife, appellant Dawn Vacik, asserted a claim for loss of consortium. The district court held a jury trial in September 2012.

Dr. Connelly did not recall the details of Vacik's case or the specifics of the surgery that occurred more than six years before trial, but testified based solely upon his review of Vacik's medical records. Dr. Connelly described his routine practice in performing endoscopic sinus surgeries that do not involve polyps, such as the one he performed on Vacik, and stated that he had no reason to believe that he departed from his normal routine in performing Vacik's surgery.

To access Vacik's maxillary sinus cavity, Dr. Connelly used a surgical tool called a "Xomed, " which is "a motorized shaving device with a blade, that spins around and cuts out tissue." The Vaciks' expert witness, Dr. Terrence Davidson, opined that Dr. Connelly was using the Xomed to clear Vacik's sinus cavity and lost control of the tool, causing the hole in Vacik's orbital floor and ripping the infraorbital nerve. Dr. Connelly testified, however, that his practice is to not use the Xomed after accessing the maxillary sinus cavity unless the patient has polyps that need to be removed. Instead, Dr. Connelly uses forceps and suction to complete the procedure.

Dr. Connelly opined that the hole in Vacik's orbital floor, and the consequent prolapse of orbital fat, was caused by a natural dehiscence, which is a "hole in the orbital floor that occur[s] naturally." He testified that the "thickened and tenacious mucous" in Vacik's maxillary sinus adhered to the naturally occurring dehiscences in the orbital floor, and when he removed that mucous it further pulled and caused the larger hole. Throughout trial, it was undisputed that Vacik had no polyps in his nasal cavity and that Dr. Connelly did not perform a polypectomy, or ...


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