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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
Courthouse News Service Courthouse News Service

Couple Can Pursue Suit Over Removed Organs

MINNEAPOLIS (CN) - A federal judge allowed a Missouri couple to sue the Mayo Clinic for medical misdiagnosis but not malpractice after the clinic told Elliot Kaplan he had pancreatic cancer and removed sections of his internal organs before realizing the mistake.

Kaplan was originally diagnosed with pancreatic cancer in Missouri and elected to have his surgery at the Mayo Clinic in Rochester, Minn. Pathologist Lawrence Burgart reviewed Kaplan's pathology slides from Missouri and confirmed the cancer diagnosis. Dr. David Nagorney performed the procedure and removed part of Kaplan's pancreas, stomach and small intestines - only to later realize that Kaplan did not have pancreatic cancer.

The Missouri court dismissed their original malpractice suit for lack of personal jurisdiction, leading the Kaplans to file suit in Minnesota without a lawyer.

Mayo moved for dismissal on the ground that the Kaplans failed to file a required expert affidavit within 180 days of filing the Minnesota action.

U.S. District Judge John Tunheim sympathized with the Kaplans' confusion about affidavit requirements, but concluded that the Missouri affidavit only addressed negligence at the diagnosis stage, not during actual surgery.

As a result, Tunheim dismissed the Kaplans' claims against Dr. Nagorney, but denied Mayo's motion on all other claims.

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