Emotional Proof Barred From Misdiagnosis Trial

     (CN) – A federal judge limited evidence of damages for the upcoming trial against Mayo Clinic by a man who was operated on for pancreatic cancer he did not have.
     Missouri doctors had diagnosed Elliot Kaplan based on a needle biopsy they performed on him in July 2003 while he was hospitalized for an enlarged pancreas.
     Dr. Lawrence Burgart, a pathologist with the Minnesota-based Mayo Clinic, also diagnosed Kaplan with grade 2 infiltrating pancreatic cancer when the patient sought a second opinion there.
     Next, a Mayo surgeon, Dr. David Nargorney, recommended that Kaplan undergo a Whipple procedure, which involves removing portions of the pancreas and stomach and the entire pylorus and duodenum.
     After Kaplan expressed concerns about the diagnosis, Dr. Nagorney allegedly promised that he would perform a second biopsy to confirm it before performing surgery. He never did, however, and proceeded with the Whipple procedure, according to the complaint.
     After examining the removed tissue post-surgery, Mayo pathologists determined that the original cancer diagnosis was incorrect.
     Kaplan and his wife, Jeanne, filed suit, and there was eventually a federal trial against the Mayo Clinic, its affiliates and Dr. Burgart in Minnesota.
     The court granted judgment as a matter of law against the Kaplans’ claim for breach of contract, and the jury sided with Mayo and Burgart on the remaining negligence claim.
     On appeal, a three-judge panel of the Eighth Circuit found that further proceedings were necessary to determine if Nagorney had breached a contract with Kaplan by failing to perform the promised follow-up biopsy.
     With a remand trial in the wings, Mayo moved to limit damages evidence that the Kaplans can present. It said the court should exclude evidence of pain and suffering and emotional damages, and dismiss Jean Kaplan’s loss of consortium claim. The hospital also said the Kaplans are restricted to using evidence from the documents and information disclosed prior to the Dec. 30, 2012, disclosure deadline.
     In a Tuesday ruling, U.S. District Judge John Tunheim threw out only the last request about the deadline.
     In excluding evidence of pain and suffering and emotional damages, Tunheim tried to predict how the Minnesota Supreme Court would handle the question.
     “Based upon Minnesota’s general law governing contractual damages, the court concludes that the Minnesota Supreme Court would likely … preclude the Kaplans from recovering pain and suffering and emotional distress damages based upon the breach of any contract formed with Mayo,” he wrote. “Although it is possible that pain and suffering and emotional distress could have reasonably been within the contemplation of Mayo and the Kaplans based upon the nature of the contract at issue, the Minnesota Supreme Court has expressly rejected the approach … of examining the underlying nature of the contract to determine whether damages such as those for mental anguish and pain and suffering are recoverable.
     Tunheim said that the Dec. 30, 2012, disclosure deadline does not apply, however, because Mayo will have ample time before the fall trial to any new damages information.
     “The court concludes that precluding the Kaplans from presenting updated evidence of damages would be overly harsh sanction given the nature of the information and the timeline of the case,” he wrote.

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