Perspectives: Medical malpractice: a few winners, many losers

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There’s an old saying in the news business that a dog biting a person is not news; a person biting a dog is news. It means that the routine is not newsworthy; a rarity often is.

Following this precept, malpractice claimants who succeed in litigation warrant attention because it is an unusual outcome.

The $19.8 million verdict rendered by an Olmsted County jury three days before Thanksgiving falls within this person-biting-dog category in several respects. The lawsuit by a Fort Dodge, Iowa, woman against the Mayo Clinic for a badly botched colorectal operation was stunning in several respects. J. Olson, “Jury awards nearly $20 million for ‘botched’ Mayo surgery,” Star Tribune, Nov. 27, 2025.

Its sheer size, for pain, suffering and past and future emotional distress was notable, and if it withstands potential post-trial and appellate procedures will be a record med-mal verdict in this state.

That it was entered against Mayo in its home town, where it is both imperial and nearly impervious adds to its notable stature.

The prevailing Iowa-based attorney for the woman and her husband stated that they “felt vindicated” by the jury, which reflects “truth and justice.” Mayo, for its part, expressed that while it “respects” the jury process, it is “disappointed in the verdict” and will examine its “next steps.”

Nonetheless, medical malpractice lawsuits are notoriously difficult to pursue or win for claimants, with an estimated 80% or more losing at trial, which contributes to the notably low malpractice issue rates in this state.

The past 12 months have witnessed a sizable number of such cases, most of them fitting the pattern of defeats for claimants.

But a pair of Minnesota med-mal claimants managed to overturn pre-trial dismissals, allowing the claims to survive, in two rulings by the Minnesota Court of Appeals late in 2024, and a federal claim was allowed to survive this spring.

The duo of state cases shared some similarities. Both were decided on the same day, arising at large medical facilities. The lower courts dismissed the two lawsuits due to defective expert affidavits. But the Court of Appeals reversed both decisions and reinstated the two cases.

Those couple of cases preceded more recent ones, however, in which the claimants met the fate of many other med-mal plaintiffs: defeat.

Both the pair of victories by claimants and the more recent string of defeats are worthy of review.

“All medicine is made to make you better. If it did the opposite, it would be malpractice.”
Chael Sonnen, retired martial arts fighter (1977- )

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“The good physician treats the disease; the great physician treats the patient who has the disease.”
“Father of Modern Medicine,” Sir William Osler (1849-1919)

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“The patient is unlikely to recover who makes the doctor his heir.”
Historian Thomas Fuller (1608-1661)

Causation case

The issue of causation was central to the reversal of summary judgment in Olson v. St. Luke’s Hospital of Duluth, 2024 WL 5114157 (Minn. App. Dec. 16, 2024) (nonprecedential).

The case was brought in St. Louis County District Court by a widow for wrongful death of her 49-year-old husband, alleging his death was due to delayed diagnosis and treatment of bacterial pneumonia at a hospital in Duluth. The lawsuit alleged the hospital failed to administer, in the morning of his stay in the faculty, anti-fungal medication to deal with breathing difficulties. The medication was given to him later that day, which was too late to save him, according to the lawsuit.

Reversing dismissal on summary judgment of the lawsuit by the District Court in Duluth, the appellate court deemed that an expert for the claimant adequately explained in his affidavit how the required standard of care would have prevented the death listed on the death certificate as “multi-system organ failure,” contributed to by bacterial pneumonia. The court noted the expert addressed “why Olson would have recovered with the required care; when Olson would have recovered with the required care; and what and how much treatment would have been needed…; as well as ‘[w]hy [respondent’s] delay, as opposed to the underlying blastomycosis, was a cause of death.”

The district court erred in finding the expert affidavit defective because it did not explain why giving the medication sooner would have saved the patient. But the expert testimony “specifies” that the morning of the hospitalization was “a critical time for survival” because it preceded development of a fatal condition that could have been averted.

The existence of genuine issues of material fact barred dismissal and warranted remand for trial.

Battery basis

Asserting medical battery was successful in a lawsuit by a pro-se litigant in overturning dismissal of a malpractice lawsuit in Mountjoy v. Fairview Health Services, 2024 WL 5114216 (Minn. App. Dec. 16, 2024) (nonprecedential).

The claimant, who went into a hospital for treatment of “massive headaches and weakness,” had her malpractice claim denied because of failure to timely submit an affidavit of expert review, as required under Minn. Stat. §145.682 upon initiation of the lawsuit.

While that was fatal to her malpractice claim, the lawsuit survives as to a second claim of medical-battery due to back surgery. That cause of action “does not require expert testimony” to establish a prima facie case.

Since there was “conflicting evidence” about her consent to surgery, the dismissal was reversed and case remanded.

At the federal level, a former Faribault inmate’s claim of deliberate indifference by prison officials to his heart condition constituted actionable malpractice this spring in Allen v. Amsterdam, 132 F.4th 1065 (8th Cir. 2025). Affirming a ruling of U.S. District Court Judge Susan Richard Nelson in Minnesota, a panel of the 8th U.S. Circuit Court of Appeals reasoned that the claim satisfied the elements under the Prison Litigation Reform Act, 42 U.S.C. § 1997, et seq. allowing him to amend his complaint after his release from confinement.

Judge James Loken of Minnesota dissented on procedural grounds, viewing the majority decision as antithetical to the statutory ground “to reduce the quantity and improve the quality of prison lawsuits.”

Losing lawsuits

Under the Allen case, the loss last month was not a medical malpractice, but it had elements of one. It consisted of an affirmance by the 8th Circuit of the dismissal of a federal civil rights lawsuit under 42 U.S.C. § 1983 by the mother of a jailed inmate after experiencing heroin withdrawal. Starks v. St. Louis County, 2025 WL 3212366 (8th Cir. November 18, 2025).

She alleged that jail personnel were “deliberately indifferent” to her son’s medical needs and were negligent in failing to appropriately train or supervise staff. The appellate court upheld dismissal of her case on grounds that the decedent’s symptoms were no worse than the “average” type of withdrawal symptoms. Because jail personnel lacked knowledge of his need for “immediate medical attention,” the wrongful death lawsuit was not actionable.

But subsequent malpractice lawsuits have been less successful.

The most recent illustration of this phenomenon occurred this summer in Seals v. Children’s Health, 2025 WL 1923855 (Minn. App. July 14, 2025)(nonprecedential),a malpractice and negligent nondisclosure case by a man who suffered a stroke while under the care of a hospital. The Hennepin County District Court dismissed the case on summary judgment, along with excluding expert reports submitted on behalf of the claimant and the Court of Appeals affirmed.

The lawsuit was defective because the facility presented several “plausible alternative causes” of the stroke that were not attributable to any fault of the hospital, and the claimant’s experts did not refute this. This reflected that the “differential diagnosis [was] … unreliable” and warranted dismissal as a matter of law.

A med-mal claimant lost his lawsuit for faulty supervision after suffering severe injuries in a motorcycle accident in Nichols v. North Memorial Health Care, 2024 WL 5242025 (Minn. App. Dec. 30, 2024)(non precedential).

The Hennepin County District Court entered a directed verdict for the defendant hospital on grounds that the plaintiff’s expert testimony that the presence of a supervising surgeon “could have prevented” a faulty injection by a less experienced resident surgeon of a catheter in the patient’s lungs that led to a puncture in his heart that necessitated emergency life-saving surgery in what the district court judge termed a “never heard-of event.”

The Court of Appeals affirmed because of insufficient evidence that the alleged “failure to supervise produced the injury.” The defect was the failure of the expert to explain the “how and why” the supervisor’s absence from the operating room caused the injury, warranting the directed verdict for the hospital where the surgery occurred.

Another medical malpractice pleading was deemed inadequate to salvage his case in Becker v. Steinhauer, 2025 WL 958777 (Minn. App. March 31, 2025)(nonprecedential). The denial by the Ramsey County District Court to permit the claimant to amend the complaint after an adverse jury verdict to allege a new cause of action of negligent nondisclosure was upheld by the Court of Appeals.

Because the medical diagnosis was not negligently made and did not include hypertension, there was no compensable claim for failing to advise the patient of the risk of such an emergency occurring. Therefore, the trial court did not abuse its discretion in denying the post-verdict amendment.

The existence of a settlement agreement with a radiologist was properly allowed in evidence in a medical malpractice case in Maurice v. Granite Falls Municipal Hospital, 2025 WL 10982457 (Minn. App. April 14, 2025)(nonprecedential). The death occurred after an aneurism led to the decedent’s death. The ensuing lawsuit against the hospital where the decedent had been treated yielded a defense verdict by a Yellow Medicine County District Court jury in western Minnesota, and the appellate court affirmed this spring.

It reasoned that, while settlement agreements are generally inadmissible, the brief reference on cross examination of the trustee was properly within the trial judge’s discretion since it “would explain to the jury why [the radiologist] was absent from trial,” leading to a jury rejecting the claim that he improperly failed to diagnose the fatal aneurism.

Dismissal of a malpractice claim under the Federal Tort Claims Act by a prisoner in a federal prison for negligent delay in medical care for spinal fusion operation was upheld in Mancini v. United States, 2025 WL 1143391 (8th Cir. 2025) (nonprecedential). The ruling by U.S. District Court Judge Eric Tostrud in Minnesota excluded an expert report that contained inaccurate factual recitations and internal contradictions. The 8th Circuit agreed, holding that the judge did not “abuse his discretion” in dismissing the lawsuit with prejudice.

These cases show that, while claimants can occasionally succeed in pursuing medical malpractice claims, that’s the exemption rather than the rule.

PERSPECTIVES POINTERS

Some Average Annual Medical Malpractice Insurance Costs in Minnesota:

Occupational medicine: $3,354

Pediatrics without surgery: $4,796

Family practice without surgery: $5,067

Internal medicine without surgery: $5,538

ER (emergency medicine): $11,745

Orthopedic: $14,327

Dental Surgery: $14,515

OBGYN: $22,844

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick Linder & Robbins, P.A.