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Kaplan v. Mayo Clinic

Citation. Kaplan v. Mayo Clinic, 653 F.3d 720, 98 A.L.R.6th 711 (8th Cir. Minn. Sept. 2, 2011)
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Brief Fact Summary.

Elliott Kaplan (Plaintiff) and his wife filed suit against Mayo Clinic Rochester, Inc., other Mayo entities (referred to collectively as “Mayo”) (Defendant) and Mayo doctors David Nagorney and Lawrence Burgart, making a number of claims that arose from Plaintiff’s incorrect diagnosis of pancreatic cancer and his surgery based on that diagnosis.  The Kaplans (Plaintiff) appealed after they lost a motion for summary judgment against one doctor and a jury verdict later for Defendant.

Synopsis of Rule of Law.

A plaintiff’s breach of contract action is sufficiently supported when damages result from the promise of a physician to perform a certain procedure and his failure to do so.


Following complaints of severe abdominal pain, Elliott Kaplan (Plaintiff) was brought to the hospital where testing was ordered by his family physician.  The hospital pathologist reported that a CT scan and needle biopsy were consistent with cancer.  Plaintiff was referred to Mayo Clinic Rochester, Inc., and specifically, to Drs. Nagorney and Burgart (referred to collectively as “Mayo” (Defendant).  Dr. Nagorney (Defendant), a surgeon, agreed to treat Plaintiff and requested from him the hospital records and biopsy slides that the pathologists had examined.  Dr. Burgart (Defendant), a pathologist, reviewed the needle biopsy slides and provided a written diagnosis that indicated cancer.  Dr. Nagorney (Defendant) reviewed Dr. Burgart’s (Defendant) report and informed Plaintiff he had pancreatic cancer that was deadly and aggressive, and he recommended that a “Whipple procedure” be performed.  This procedure involves removing part of the pancreas and stomach, as well as the duodenum.  Following the surgery, Dr. Burgart (Defendant) and the other Mayo (Defendant) pathologists examined the removed pancreatic tissue, and found that Plaintiff had not had cancer after all.  Plaintiff and his wife filed suit against Mayo (Defendant) and Drs. Nagorney (Defendant) and Burgart (Defendant), based on the incorrect diagnosis of pancreatic cancer and the surgery that followed.  The district court granted summary judgment in favor of Dr. Nagorney (Defendant), and the case went on to trial against the other defendants on claims of breach of contract and negligent failure to diagnose.  At the conclusion of Plaintiffs’ case-in-chief, the district court granted judgment as a matter of law against them on the breach-of-contract claim.  The jury returned a verdict for Mayo (Defendant) and Dr. Burgart (Defendant) on the Kaplan’s claim for negligent failure to diagnose, and the district court entered judgment on that verdict.  The Plaintiffs then appealed the judgments in favor of Mayo (Defendant) and Dr. Burgart (D) on their negligent failure-to-diagnose and contract claims.


Is a plaintiff’s breach of contract action sufficiently supported when damages result from the promise of a physician to perform a certain procedure and his failure to do so?


(Arnold, J.)  Yes. A plaintiff’s breach of contract action is sufficiently supported when damages result from the promise of a physician to perform a certain procedure and his failure to do so.  The expert testimony presented by the parties at trial conflicted as to whether the biopsy slides that Dr. Burgart (Defendant) relied on supported his diagnosis of pancreatic cancer, as to the harm suffered by Plaintiff caused by the Whipple procedure, and as to whether Dr. Nagorney (Defendant) had promised that he would do an intraoperative biopsy in order to determine whether Plaintiff had cancer and forego the procedure if results of the biopsy showed he did not.  The court rejected evidentiary claims of the Plaintiff—that documents and photographs referring to insurance were not properly admitted into evidence and that leaving an expert’s name out of the jury instructions was an obvious error.
  In order to make out a claim for breach of contract, the Plaintiffs were required to show formation of the contract, the defendants’ breach, and resulting damages.  The district court concluded that the Plaintiff’s claim only restated a claim of medical negligence as a breach of contract, and held that Plaintiffs therefore must have expert testimony to show that Dr. Nagorney (Defendant) failed to meet the appropriate standard of care when he did not perform an intraoperative biopsy and because of this, Plaintiff underwent Whipple surgery.  This court disagrees.
  In their amended complaint, the Plaintiffs alleged that after Plaintiff informed Dr. Nagorney he had concerns regarding the accuracy of the cancer diagnosis, Dr. Nagorney (Defendant) individually and on behalf of Mayo (Defendant), made a “definitive agreement” with Plaintiff that he and his Mayo (Defendant) colleagues would insure that Mayo’s pathology diagnosis would be completely thorough and precise, and that, as consideration, Plaintiff authorized the Whipple procedure and paid them for that surgery.  The Plaintiff then also alleged that Dr. Nagorney (Defendant) breached the agreement when he did not tell his colleagues about the concerns of Plaintiff, and failed to insist that Mayo perform its own biopsy, or create its own slides from the tissue removed during the needle biopsy, and failed to take any other steps that Plaintiff was told that Dr. Nagorney (Defendant) and Mayo (Defendant) would take to make sure the diagnosis of his condition was correct.
  This evidence is seen in a light favorable to the Plaintiffs, as required by the context.  Upon his arrival at Mayo, Plaintiff was told right away by Dr Nagorney (Defendant) that he had cancer.  Dr. Nagorney (Defendant) said he did not have doubt about the diagnosis because a Mayo (Defendant) pathologist, who was the best or one of the best in the world, had unequivocally diagnosed Plaintiff with it.  After Dr. Nagorney (Defendant) explained the Whipple procedure, Plaintiff inquired if they could verify his cancer diagnosis once they opened him up for surgery.  Dr. Nagorney (Defendant) explained they would do a biopsy to verify the cancer, and if there was none, they would close him up and send him home.  However, Dr. Nagorney (Defendant) failed to perform an intraoperative biopsy to very Plaintiff’s diagnosis of cancer.
  It is correct that Dr. Nagorney (Defendant) testified he had not promised to do such a biopsy.  He testified that there actually was no intraoperative (or pre-operative) procedure available to confirm Dr. Burgart’s (Defendant) cancer diagnosis and that the only way to confirm Plaintiff’s cancer diagnosis was to go forward with the operation.  But this testimony only raises factual questions for the jury regarding whether or not there was an agreement.  Dr. Nagorney (Defendant) acknowledged that in the past he had performed intraoperative biopsies of the pancreas to determine whether or not to proceed with a Whipple surgery.  He added that surgeons still follow that protocol.  This evidence lends some credibility to the testimony that Dr. Nagorney (Defendant) promised to do the procedure in this case (maybe in order to ease Plaintiff’s ongoing concerns regarding whether or not the diagnosis was accurate).
  The testimony of Dr. Nagorney (Defendant) also reveals it was commonplace for him to perform intraoperative biopsies during surgery for pancreatic cancer.  When he found something suspicious, he would have a pathologist examine the removed tissue.  Though he did not perform the biopsy as promised, during Plaintiff’s surgery, Dr. Nagorney (Defendant) repeatedly had the pathologist check for cancer.  Plaintiff’s and Dr. Nagorney’s testimony was obviously more than sufficient to support a finding of the formation of a contract, and an undisputed breach.  In order to prove damages, the Plaintiffs would first have to provide evidence to support a finding that the intraoperative biopsy results have been negative for cancer.  There is no dispute that Plaintiff did not have cancer, and the Defendants presented evidence that in a rare occasion, a biopsy appears to show cancer when there is none.  Also, the intraoperative biopsy of pancreatic tissue that was removed during the Whipple did not show cancer.  It could possibly be concluded that a jury could reasonable find that if Dr. Nagorney (Defendant) had performed the promised procedure, it would have shown that Plaintiff did not have cancer.  There was evidence to support a finding that the Plaintiffs provided enough evidence of economic damages resulting from that procedure, although the amount was of great dispute, in order to meet the final requirement to make out their contract claim.
  In this case, the Plaintiff’s simple claim is that a physician did not perform the particular procedure as he promised, resulting in damages to the Plaintiffs.  Therefore, the Plaintiffs offered sufficient evidence in their case-in-chief to support a breach-of-contract claim against Mayo (Defendant) without providing expert testimony.  The grant of judgment as a matter of law to Mayo (Defendant) on the Plaintiffs’ claim for breach of contract is reversed and remanded for additional proceedings.  The judgment in favor of Dr. Burgart (Defendant) on the contract claim and the judgment for Mayo (Defendant) and Dr. Burghart (Defendant) on the claim for negligent failure to diagnose are affirmed.  Affirmed in part and reversed and remanded in part.


When suing a doctor, the difference between a breach of contract and negligence claim are of important significance.  In Kaplan, the doctors may have performed at adequate standards of care and therefore defeated malpractice claims, but contractual liability was created with the promise to perform a specific procedure.  The lower court was incorrect to rush a ruling that the tort claim only mirrored the negligence tort claim.  Each cause of action is distinct, and accordingly, the defenses to each are different.

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