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Tholen v. Assist America, Inc.

United States District Court, D. Minnesota

June 6, 2019

Richard H. Tholen, Plaintiff,
Assist America, Inc., Defendant.

          Emily E. Niles, Esq., Patrick M. Arenz, Esq., and Ronald J. Schutz, Esq., Robins Kaplan LLP, counsel for Plaintiff.

          Joanna Lee Storey, Esq., Mark T. Berhow, Esq., and Robert J. Romero, Esq., Hinshaw & Culbertson LLP, counsel for Defendant.




         This is a personal injury dispute over whether Plaintiff Dr. Richard H. Tholen (“Tholen”) suffered injury and other damages due to Defendant Assist America's (“Assist America”) failure to provide emergency medical evacuation services pursuant to the insurance policy Tholen purchased through his membership in American Medical Association Insurance. The parties dispute whether Assist America owed a duty of care to Tholen, and, if so, whether Assist America breached its duty. The Court now considers Assist America's motion for summary judgment. (Doc. No. 161.) For the reasons set forth below, the Court denies the motion.


         The underlying facts of this case have been detailed in previously issued orders and will not be exhaustively addressed here.[1] Tholen is a board-certified, nationally recognized plastic surgeon. (Doc. No. 96 (“Am. Compl.”) ¶ 14.) Assist America is a membership-based organization in the business of providing global emergency medical services, including “emergency medical evacuation” if a member cannot receive adequate care locally. (Am. Compl. ¶¶ 1, 23.) Tholen was an Assist America member in 2015. (Id. ¶ 21.)

         According to its description to members of its services, “if adequate medical facilities are not available locally, Assist America will use whatever mode of transport, equipment and personnel necessary to evacuate a member to the nearest facility capable of providing a high standard of care.” (Id. ¶ 23.) To its employees, Assist America says its services include “quickly connecting [members who call in] with capable health care professionals who comply with U.S. quality healthcare standards.” (Id. ¶ 27.) Among its “key services, ” Assist America lists “medical consultation, evaluation [and] referral” provided through calls to its “Operations Center” that are “evaluated by medical personnel and referred to English-speaking, Western-trained doctors and/or hospitals.” (Doc. No. 165 (“Berhow Decl.”), Ex. 2 at 3.) Assist America claims its Operations Center “is staffed 24/7 by medically-certified, multilingual personnel who can make immediate recommendations for any emergency situation.” (Berhow Decl., Ex. 3 at 4.) Assist America further states that “[w]hen a call comes in, [Operations Center staff] put in motion Assist America's vast English-speaking, Western-quality provider network to solve medical and non-medical emergencies anywhere in the world.” (Id.)

         Tholen attempted to use Assist America's services in April 2015 after he severely injured his right knee ziplining during a vacation in Mazatlán, Mexico on April 19. (Am. Compl. ¶¶ 31-32.) Tholen was taken first to a small clinic for treatment, where x-rays were taken of his leg and a doctor placed a hard cast on his right leg from groin to toe despite Tholen's expressed concerns about doing so when he had a severe dislocation and x-rays showing fibular fracture. (Id. ¶ 33.) Tholen and his wife, Mary Jane “Sami” Tholen (“Mrs. Tholen”), who is herself a registered nurse, called an orthopedic surgeon in the Tholen's home state of Minnesota “for guidance” who advised that the full leg cast was not the appropriate treatment for Tholen's injury and needed to be removed. (Id. ¶¶ 5, 35-36.)

         The Tholens went to Hospital Marina Mazatlán (the “Hospital”) for additional care. (Id. ¶ 36.) The first doctor Tholen saw did not agree to remove the cast but did agree to have an orthopedic traumatologist assess Tholen's injury. (Id. ¶ 37.) Dr. Christian Jesus Lopez Rodriquez (“Dr. Lopez”), an orthopedic traumatologist, agreed that the cast should be removed. (Id.) After removing the cast through a “long and painful” process during which Hospital staff had trouble finding and operating the cast saw, the doctors at the Hospital sent Tholen back to his hotel for the night and told him to return for follow-up care with Dr. Lopez the next night. (Id. ¶ 38.) Neither the clinic nor the Hospital gave Tholen any narcotic or prescription-strength pain medications at any point during his treatment. (Id. ¶¶ 33, 38.)

         Tholen e-mailed Assist America from the Hospital on April 19 to inquire about “the availability of transfer home.” (Doc. No. 216 (“Pl. Opp. Mem.”) at 10.) Tholen described his injury as a “high energy fracture dislocation, ” adding that an x-ray confirmed the presence of a “proximal fibular spiral fracture.” (Id.) He wrote that he was taken to a clinic for x-rays and “circumferential casted.” (Id.) Tholen detailed that his toes were numb after the injury, with less sensation at the time the message was written, and that when Tholen had asked the treating physician about compartment and swelling concerns, the physician was unconcerned. (Id.) Tholen reported that he was still experiencing “lots of pain” after his initial care so he called his doctor friend, who advised him to have the cast bivalved and get home as soon as possible to “check for intimal vessel tear.” (Id.) Tholen noted that he is himself a surgeon, and gave his contact information as well as information on his age and his general health. (Id.) Finally, Tholen told Assist America that he was “scared.” (Id.)

         Mrs. Tholen also contacted Assist America by phone that day, placing a call from the Hospital that was answered by medical coordinator Clifton Sukhu (“Sukhu”).[2] (Am. Compl. ¶ 65.) Sukhu graduated from a Hungarian medical school and is licensed to practice in Hungary (Doc. No. 163 (“Def. Mem.”) at 6-7) but has never practiced medicine and is not licensed to practice medicine in the United States. (Am. Compl. ¶¶ 67-68.) Mrs. Tholen provided the name and location of the Hospital as well as the name of the treating physician, Dr. Lopez. (Pl. Mem. Opp., Ex. 76 (“First Call Transcript”) at 3:5-17.) Sukhu told Mrs. Tholen that his clinical team, who were “all medical professionals, ” would need to speak with Dr. Lopez and would also need to review medical records to “understand exactly what we are dealing with and the best services we can provide to your spouse.” (First Call Transcript at 3:23-27.) When Mrs. Tholen asked if this requirement could be met simply by speaking with Dr. Lopez or if she needed to somehow send records to Assist America, Sukhu replied that they would speak to Dr. Lopez themselves and it would be Dr. Lopez who would need to send treatment information. (Id. at 3:28-30, 4:1-2.) Sukhu then spoke with Dr. Lopez through the assistance of an interpreter, as Dr. Lopez did not speak English proficiently enough to discuss the case and Sukhu, like the Tholens, was not fluent in Spanish. (Id. at 4:15-23, 17:23-25.)

         Sukhu inquired of Dr. Lopez in broad terms, asking if the Hospital could “treat [Tholen] for his condition.” (Id. at 5:21-22.) Dr. Lopez said, “[y]es, of course.” (Id. at 5:23.) Sukhu then asked if Tholen was asking to be transferred, to which Dr. Lopez responded, “I think it would be [Tholen's] preference because we are already treating him here.” (Id. at 5:26-28, 6:5-6.) From this answer, Sukhu concluded Tholen was “receiving appropriate treatment.” (Id. at 6:10.) Sukhu went on to say he “wanted to confirm that your hospital has an orthopedic surgery team and appropriate treatment for [Tholen].” (Id. at 6:11-12.) The interpreter asked if “they have orthopedists and orthopedic surgeons to treat [Tholen], ” to which Dr. Lopez responded: “That is correct.” (Id. at 6:15-18.)

         Sukhu told Dr. Lopez, “I'm also a medical doctor and our service is to assist the member if the hospital cannot treat the member appropriately, ” which the interpreter translated to Dr. Lopez as “Doctor Cliff is currently a medical doctor of medicine, too” and added that Assist America would “help patients return to their home . . . if for some reason they are not being treated . . . but at this time [Tholen] is being treated precisely for his condition.” (Id. at 6:21-30.) Sukhu told Dr. Lopez that he was going to encourage the Tholens to stay at the Hospital for treatment. (Id. at 7:6-7.) Sukhu asked Dr. Lopez if he would be the physician treating Tholen in the emergency room that night, to which Dr. Lopez answered, “No, I am a trauma doctor.” (Id. at 7:21-24.) The interpreter relayed the message: “Oh, he is a trauma doctor.” (Id. at 7:25.) To this, Sukhu responded: “Perfect, perfect. Okay, alright.” (Id. at 7:26-27.) Upon further questioning from the interpreter, Dr. Lopez said that he would in fact be Tholen's treating physician. (Id. at 7:28-8:3.)

         Sukhu asked to speak with Mrs. Tholen again, and reported that he had explained to Dr. Lopez that he (Sukhu) was also a medical doctor. (Id. at 8:25-28.) Mrs. Tholen replied, “Oh, good.” (Id. at 8:29.) Sukhu told Mrs. Tholen that her husband “currently has a medical emergency, ” but went on to tell her that Tholen was “in a very good hospital, ” with a “treating team” that had “orthopedic intervention” and could “treat [Tholen] appropriately.” (Id. at 9:9-15.) Sukhu said that in a case where a member is being treated appropriately, Assist America would “normally encourage them to stay there . . . instead of us getting involved and trying to move them in an unstable condition and cause more harm.” (Id. at 9:17-21.)

         The Tholens protested, informing Sukhu repeatedly that Tholen's condition involved vascular compromise, that the orthopedist they had consulted by phone was “appalled” that Tholen's injured leg was casted, they were concerned Tholen may have a clot, that he needed an angiogram, that he was concerned that his risks associated with travel would increase if he waited until after he had a surgical procedure, that they were having difficulty communicating due to the language barrier, and that they wanted care of an American standard of care. (Id. at 10:3, 10:7-8, 16:9-11, 17:25, 18:14-15, 19:8-9.)

         Mrs. Tholen asked Sukhu to speak again with Dr. Lopez and, with the aid of the interpreter, Dr. Lopez told Sukhu it was his understanding that the Tholens wanted to fly home to Minnesota, which, with a direct flight, would take five hours. (Id. at 12:27-30, 14:7.) Dr. Lopez said that he recommended keeping Tholen at the hospital for observation for 24 to 48 hours, and that Tholen's leg was “very swollen.” (Id. at 14:8-14.)

         Sukhu told Mrs. Tholen that if it was her decision and her choice to return home tomorrow, Assist America would not provide that service. (Id. at 14:30, 15:1-6.) When she asked what kind of situation would be covered, Sukhu replied that Assist America would “medically monitor” Tholen's inpatient stay, and that Assist America speaks with “treating teams, ” and obtains medical records to “make sure our members are receiving appropriate treatment that is western [sic] level of care, the same level of care that is received here in the United States.” (Id. at 15:11, 15:17-23.) Sukhu warned against medical evacuation, telling Mrs. Tholen that “[m]oving a member puts them at risk. It is a liability and it is endangering the patient.” (Id. at 15:25-27.) At one point in the approximately 25-minute long call, Mrs. Tholen asked, “What can I say that will make you let us come home?” (Id. at 16:25.) Sukhu answered, “My clinical director will not allow it. And I can bring all my clinical directors on the phone to speak with you.” (Id. at 16:26-28.)

         The Tholens continued to request assistance, repeating their concerns including that a trusted orthopedic surgeon had advised them to return home, their inability to communicate with healthcare providers, and that Tholen needed an angiogram and may have vascular compromise. (Id. at 17:19-21, 17:23-25, 18:7-10, 18:15, 19:8-9.) Sukhu told them that he knew the Hospital was “more than capable” of providing appropriate treatment because Dr. Lopez told him so (id. at 17:3-6), and could provide Tholen with “both vascular and orthopedic type treatment” (id. at 19:14). Speaking to Tholen, Sukhu told him that “[Sukhu's] clinical team here are specialists in site physiology and understand the dynamics of changes, ” and that Assist America moves members with traumas, “but if a member is in an appropriate facility . . . we don't move him ...

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