United States District Court, D. Minnesota
Richard H. Tholen, M.D., and Mary Jane Tholen, Plaintiffs,
Assist America, Inc., Defendant.
J. Schutz, Esq., Patrick M. Arenz, Esq., Brenda L. Joly,
Esq., and Emily E. Niles, Esq., Robins Kaplan LLP, counsel
T. Berhow, Esq., Hinshaw & Culbertson LLP, counsel for
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
Richard H. Tholen, M.D. (“Dr. Tholen) and Mary Jane
Tholen (“Mrs. Tholen”), sued Defendant Assist
America, Inc., alleging defamation arising out of marketing
material that Defendant published which detailed an accident
leading to Dr. Tholen's leg amputation. This matter is
before the Court on Defendant's motion to dismiss. For
the reasons discussed below, the Court grants the motion.
Tholen is a board-certified, nationally recognized plastic
surgeon. (Doc. No. 1 (“Compl.”) ¶¶
16-19.) Assist America is a membership-based organization and
is in the business of providing global emergency medical
services, including medical evacuation if a member does not
receive adequate care locally. (Id. ¶ 2.) In
2015, the Tholens were Assist America members. (Id.
Tholens attempted to use Assist America's services in
April 2015. On April 19, 2015, while vacationing in
Mazatlán, Mexico, Dr. Tholen suffered a severe knee
injury in a zip lining accident. (Id. ¶ 21.)
Dr. Tholen received immediate medical care, which included
the placement of a hard cast on his leg. (Id. ¶
22.) The medical professionals did not, however, check his
leg for a vascular injury. (Id.) The Tholens allege
that such care was so poor that it would be considered
malpractice in the United States. (Id.)
same day, the Tholens contacted an orthopedic surgeon in the
United States, who advised them to have the cast removed and
to return to the U.S. as soon as possible for evaluation and
treatment. (Id.) The Tholens then visited a second
hospital in Mexico, where Dr. Tholen had the cast removed.
While at the second hospital, Dr. Tholen e-mailed and called
Assist America requesting medical evacuation. (Id.
¶ 28, Ex. B; ¶¶ 29-30.) The Tholens allege
that Assist America refused to evacuate the Tholens, did not
consult with an Assist America medical director in reaching
the decision, and told them that they were at “a very
good hospital.” (Id. ¶¶ 30-31.)
April 20, 2015, the Tholens again contacted Assist America,
and Assist America again refused to evacuate the Tholens even
though no medical director had yet assessed Dr. Tholen's
situation. (Id. ¶ 33.) On April 21, 2015, two
of Assist America's medical directors-Dr. Shaffrey and
Dr. Krohn-reviewed Dr. Tholen's situation and approved
his evacuation to the United States. (Id.
¶¶ 35-36.) By then, the Tholens had already
purchased first-available tickets for a flight out of Mexico.
(Id. ¶ 34.) The Tholens departed Mexico on
April 21, 2015, and landed in Minnesota in the early morning
hours of April 22, 2015. (Id.) Assist America did
not communicate with the Tholens during this time.
(Id. ¶¶ 40-42.)
returning to Minnesota, on April 22, 2015, Dr. Tholen saw an
orthopedic surgeon and a vascular surgeon. (Id.
¶ 43.) Over the course of several weeks, Dr. Tholen
underwent numerous tests and surgical procedures designed to
save his leg. (Id. 44-46.) Unfortunately, doctors
determined that Dr. Tholen's right leg could not be
saved, and on May 18, 2015, he underwent an above-knee
amputation of his right leg. (Id. ¶ 47.) On
August 24, 2017, Dr. Tholen sued Assist America for
negligence and breach-of-contract, alleging that Dr.
Tholen's leg could have been saved but for Assist
America's negligence and breach of contractual duties.
Tholen v. Assist America, Inc., Civ. No. 17-3919
(DWF/SER). The Tholens' negligence and breach-of-contract
action is ongoing, with the parties having completed fact
discovery, exchanged opening and rebuttal expert reports, and
engaged in motion practice regarding discovery. See
case, however, involves allegations that Assist America
published false statements and misrepresentations about the
Tholens' accident and request for evacuation, and Assist
America's response. Specifically, the Tholens allege that
Assist America made false and defamatory statements in a case
study that it published on July 26, 2016 in the Assistance
and Repatriation Review 2016, a special edition of the
International Travel & Health Insurance Journal
(“Case Study”). (Compl. ¶ 57.)