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STATE OF MINNESOTA
IN COURT OF APPEALS
C1-00-366
Dianne L. Shea,
Appellant,
vs.
Sidney Esensten,
Respondent, et al.
Filed February 6, 2001
Affirmed
Anderson, Judge
Hennepin County District Court
File No. 949878
Corey J. Ayling, McGrann Shea Franzen Carnival Straughn & Lamb, Chartered, 2600 U.S.
Bancorp Center, 800 Nicollet Mall, Minneapolis, MN 55402; and
John R. Schulz, Collins Buckley Sauntry & Haugh, W. 1100 First National Bank Building, 332
Minnesota Street, St. Paul, MN 55101 (for appellant)
J. Richard Bland, Cecilie Morris Loidolt, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33
South Sixth Street, Minneapolis, MN 55402 (for respondents)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
S Y L L A B U S
A plaintiff seeking to admit managed-health-care evidence to show that financial incentives
influenced a physician's treatment of a patient must show a plausible link between evidence and
treatment.
O P I N I O N
ANDERSON, Judge
Following the death of her husband, appellant Dianne Shea brought an action against respondents,
alleging medical malpractice. Appellant challenges the district court's decision excluding (1)
evidence of the managed-care structure in place at respondent clinic and (2) evidence of past
professional misconduct by one of the respondent physicians. Appellant also claims the district court
abused its discretion by submitting the question of comparative fault to the jury. Because appellant
did not show that the offered evidence was relevant to the question of medical malpractice, and
because the evidence was prejudicial, we hold that the district court acted within its broad
discretion by excluding the evidence. We also hold that the district court properly instructed the
jury. Accordingly, we affirm.
FACTS
Drs. Sidney Esensten and Jeffrey Arenson, respondents, are family-practice physicians who treated
the decedent, Patrick Shea, for more than a decade before his death in 1993. Shea had a family
history of heart disease. Appellant Dianne Shea, Shea's widow, testified that Shea had chest pain as
early as 1991 but she did not know whether the chest pain was reported to his doctors. Dr.
Arenson administered an exercise stress test in early 1992; Shea passed. In June 1992, Shea felt
chest tightness while on business in Thailand and sought medical treatment. A cardiologist at Bangna
General Hospital performed blood tests, an electrocardiogram test, and a stress test. Based on the
results of these tests, the Thai cardiologist ruled out a cardiac cause for Shea's symptoms.
After returning from Thailand, Shea sought treatment for continuing chest pain, abdominal pain, and
dizziness. According to the medical records and Dr. Esensten's testimony, on July 6, 1992, Shea
did not complain of any chest pain or discomfort but reported abdominal problems. Dr. Esensten
testified that he spoke to the Thai cardiologist and learned that Shea's electrocardiogram and stress
tests completed there were normal. Dr. Esensten saw Shea again on July 8, 1992 to review a
stomach X-ray, and again on July 22 and August 10, 1992 to follow up on the effectiveness of
medications prescribed to alleviate Shea's stomach pain.
Shea saw Dr. Arenson in August 1992 and again on September 17, 1992. Dr. Arenson testified
that during those visits Shea complained of abdominal pain and chest discomfort, and told of his
medical treatment in Thailand. Although appellant testified that her husband asked to see a
cardiologist, the medical records do not show that Shea asked for a specialist referral. Dr. Arenson
testified that, had Shea insisted on seeing a cardiologist, he would have made the referral. Instead,
based on his complaints, Shea's doctors referred him to a gastroenterologist. The results of a
September 1992 colonoscopy showed nothing out of the ordinary. Drs. Esensten and Arenson
concluded that Shea's symptoms were anxiety-related and prescribed sedatives. Dr. Arenson saw
Shea again on October 6; Shea complained of the same symptoms but had not taken all the
medication prescribed to him. Dr. Arenson diagnosed Shea as suffering from hyperventilation and
prescribed a sedative.
Shea did not visit his doctors again until February 1, 1993, when he complained to Dr. Arenson of
shortness of breath, dizziness, and heartburn. Dr. Arenson administered an electrocardiogram test;
the results were normal. Dr. Arenson prescribed medication to lower Shea's cholesterol. On March
5, 1993, Shea telephoned his wife and told her he was suffering from chest pain. On his way to the
clinic, Shea drove past two hospitals. Shea was found dead, slumped over the wheel of his car
several blocks from the clinic. The autopsy showed Shea's left anterior descending coronary artery
was 80-85% blocked and the right coronary artery was 50-60% blocked. Shea had
arteriosclerotic heart disease and suffered sudden cardiac death.
In June 1994, appellant, individually and as trustee for her husband's heirs, commenced a
medical-malpractice action against doctors Esensten and Arenson; their employer, Family Medical
Clinic (clinic); and Shea's insurer, Medica. The case was removed to and returned from federal
district court several times because appellants changed defendants and legal theories. The state
medical-malpractice claim was tried to a jury in October 1999. Appellant moved for the admission
of managed-care evidence to show Drs. Esensten and Arenson had financial motives that interfered
with their treatment of Shea. Appellant sought to introduce evidence to show that managed-care
incentives discouraged specialist referrals.
Appellant offered financial evidence to show why Shea had not been referred to a cardiologist.
Distilled to its essence, Shea's health-insurance plan included specialist treatment if a referral to the
specialist was made by a primary-care doctor. The more specialty referrals made, the less income
the referring clinic received. The less income the clinic received, appellant argued, the fewer doctors
they could employ, and, thus appellant contended, this contractual arrangement discouraged
specialist referrals. As support, appellant pointed to 1988 meeting minutes showing that Dr.
Arenson expressed concern about the capitation contract between the clinic and Medica. [1]
Appellant also sought to introduce Dr. Esensten's professional-discipline history for impeachment
purposes. Dr. Esensten was professionally disciplined in 1989 for prescribing medication to himself.
Dr. Esensten and the Minnesota Board of Medical Examiners entered into a stipulated agreement
restricting Dr. Esensten's practice. In 1991, following a period of compliance, the Board removed
all conditions on Dr. Esensten's medical license. The district court excluded this proffered evidence
on grounds of irrelevance, prejudice, and improper impeachment.
Medical experts who testified on behalf of appellant agreed that Shea should have been referred to
a cardiologist. But when asked whether respondent's diagnosis was a fatal mistake, one expert
answered, “I don't know. I really don't know.” Respondents produced three medical experts who
testified that Shea's medical records did not show he suffered from a cardiac condition but rather
gastrointestinal problems. Respondent's experts did not think Shea's symptoms should have resulted
in a referral to a cardiologist. One expert testified that even had a referral been made, the outcome
would not have been any different because a cardiologist would have treated the risk factors of
smoking and high cholesterol just as Drs. Esensten and Arenson did. Another expert stated that
Shea's death was unpredictable and unpreventable.
The district court's jury instructions included an instruction on comparative fault. The jury returned a
unanimous special verdict attributing all fault to Shea and no fault to Drs. Esensten and Arenson.
The district court denied appellant's motion for new trial. This appeal followed.
ISSUES
I. Did the district court abuse its discretion by excluding, as irrelevant, prejudicial,
and improper impeachment, evidence of managed-care contracts and prior
professional discipline?
II. Did the district court abuse its discretion by instructing the jury on the legal
theory of comparative fault?
ANALYSIS
I.
Appellant first argues that the district court abused its discretion by excluding evidence that, if
admitted, would have (1) shown the managed-care agreement between Medica and the clinic
discouraged Drs. Esensten and Arenson from providing proper care and (2) impeached the
physicians' testimony. When reviewing evidentiary rulings, we must determine whether the district
court has based the decision on an erroneous view of the law or abused its discretion. Kroning v.
State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).
That a reviewing court disagrees with a district court's ruling and would have reached a different
result is not a sufficient basis for reversal. Williams v. Wadsworth, 503 N.W.2d 120, 123 (Minn.
1993). To constitute reversible error, an evidentiary ruling must be prejudicial. Uselman v.
Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Before an error in the exclusion of evidence may
be grounds for new trial, it must appear that such evidence might reasonably have changed the result
of the trial if it had been admitted. Poppenhagen v. Sornsin Const. Co., 300 Minn. 73, 79, 220
N.W.2d 281, 285 (1974).
A. Exclusion of Managed-Care Evidence
Appellant sought to admit evidence to prove managed-care contracts affected Shea's medical care.
The district court determined that the evidence concerning the contracts and other managed-care
evidence was not relevant to the determination of the malpractice claim but was “potentially very
prejudicial” and did not constitute proper impeachment evidence. The district court reasoned that
the issue of malpractice turned on the medical evidence, not the managed-care contracts.
Relevant evidence is evidence having “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Minn. R. Evid. 401. “Reduced to simple terms, any evidence is relevant
which logically tends to prove or disprove a material fact in issue.” Boland v. Morrill, 270 Minn.
86, 98-99, 132 N.W.2d 711, 719 (1965).
To prove negligence in a malpractice action, a plaintiff must show (1) the applicable standard of
care recognized by the medical community as applicable to the defendant's conduct; (2) that the
defendant in fact departed from the applicable standard; and (3) that the defendant's departure from
the applicable standard was a direct cause of the injury. Williams, 503 N.W.2d at 123. A plaintiff
must offer expert medical testimony
both to state the standard of medical care and the treatment recognized by the
medical community and to establish that the defendant physician in fact departed
from that standard, it being settled that a physician is not responsible for the
consequences of an honest mistake or error of judgment in his diagnosis or
treatment.
Silver v. Redleaf, 292 Minn. 463, 465, 194 N.W.2d 271, 272 (1972) (citation omitted). The
elements of malpractice do not require the plaintiff to show a physician's reasons or motivations for
departing from acceptable standards. Instead, it is the proof that the physician in fact departed
from the standard of care that is critical.
Appellant points to D.A.B. v. Brown, 570 N.W.2d 168, 171 (Minn. App. 1997), to illustrate that
managed-care incentives go to the heart of a malpractice claim. But that case involved an illegal
kickback scheme, and the doctor involved was required by statute to disclose his financial interests.
Id. The act of malpractice was the negligent nondisclosure. Id. Although evidence of financial
incentives may, as in D.A.B., be relevant to a “a doctor's attitude toward treatment of his patients
during the same period of time,” relevance “hinges on whether the plaintiff can plausibly link the
two.” Strauss v. Biggs, 525 A.2d 992, 999 (Del. 1987) (finding evidence of overbilling and
overscheduling relevant); see also Madsen v. Park Nicollet Med. Ctr., 419 N.W.2d 511, 515
(Minn. App. 1988), rev'd on other grounds, 431 N.W.2d 855 (Minn. 1988) (patient's status
under managed-care structure excluded where evidence only “marginally relevant” to the question
of negligent nondisclosure); Lancaster v. Kaiser Found. Health Plan of Mid-Atlantic States,
Inc., 958 F. Supp. 1137, 1146 (E.D. Va. 1997) (observing, in dictum, the possible relevance of an
incentive program that discouraged doctors from ordering diagnostic tests); Corrigan v. Methodist
Hosp., 874 F. Supp. 657, 659 (E.D. Pa. 1995) (holding evidence of doctor's investment in
surgical-screw manufacturing company relevant to negligence in informed-consent case where
screws were used in plaintiff patient's surgery).
Unlike cases that involve a duty to disclose an incentive, Minnesota law expressly provides that a
physician has no duty to disclose capitation contracts to a patient. See Minn. Stat. § 147.091, subd.
1(p)(4) (2000). [2] Appellant did not offer evidence that Drs. Esensten and Arenson engaged in
overbilling or overscheduling or that they had a financial interest in a company that manufactures a
product used in Shea's treatment. Appellant did not offer evidence that the clinic discouraged
referrals, apart from the fact that referrals reduce the monies available to the clinic. Appellant did
not offer to show that Drs. Esensten and Arenson failed to make necessary specialist referrals of
other patients. Shea's doctors did, in fact, refer him to a specialist, though not a cardiologist.
Appellant argues that Dr. Arenson voiced his concern about the limitations of the capitation contract
during a clinic office meeting in 1988, but appellant fails to connect that concern to Shea's treatment
years later.
The logical and inevitable conclusion here is that appellant has failed to plausibly link the
managed-care contracts to Shea's care. The contracts in this case have no meaningful bearing on
the medical standard of care required in Shea's case and do not shed any light on whether Drs.
Esensten or Arenson departed from that standard of care. Accordingly, the district court did not
abuse its discretion by excluding the evidence as irrelevant.
Even had the threshold requirement of “relevance” been met, relevant evidence may nonetheless be
excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
Minn. R. Evid. 403. This rule requires courts to balance the probative worth of the evidence against
its potential for harm.
We view the voluminous evidence on managed care and the respective financial risks born by
Medica and the clinic to be the type of evidence that would confuse, mislead, and prejudice a jury.
See Madsen, 419 N.W.2d at 515 (holding that district court did not abuse discretion by excluding
very prejudicial evidence that patient's insurance status meant her hospitalization could have
adversely affected her physician's profits); see also In re Commodore Hotel Fire & Explosion
Cases 324 N.W.2d 245, 249 (Minn. 1982) (affirming exclusion of restoration-cost evidence
because relevance outweighed by its tendency to confuse the jury). A jury, faced with complex
financial evidence, might very well have based its decision on cost-containment issues rather than
deciding whether Drs. Esensten and Arenson, in fact, departed from the standard of medical care
applicable in Shea's case.
A party may, however, impeach a witness by introducing evidence of bias. Minn. R. Evid. 616.
Appellant argues that the outcome of this case turned on the credibility of respondent doctors and
appellant; therefore appellant should have been allowed to impeach the doctors with evidence of
financial incentives. Evidence of bias, prejudice, or interest of the witness for or against any party is
relevant and admissible. Minn. R. Evid. 616 cmt. (stating that a witness's bias, prejudice, or interest
is a fact of consequence). Cross-examination of an adverse witness is essential to ensure a fair trial
and has been characterized as an “inviolate right.” Klingbeil v. Truesdell, 256 Minn. 360, 366, 98
N.W.2d 134, 140 (1959).
But a district court's exclusion of particular evidence tending to show bias is not reversible error per
se. To constitute error, an evidentiary ruling must be prejudicial. Uselman, 464 N.W.2d at 138.
Where other evidence, even if presented in a “fragmented fashion,” shows an association giving rise
to bias, there is no prejudice and no cause for reversal. Bigay v. Garvey, 562 N.W.2d 695, 702
(Minn. App. 1997), rev'd on other grounds, 575 N.W.2d 107 (Minn. 1998).
In this case, the jury knew that Drs. Esensten and Arenson worked for the clinic, and their own
interest in the outcome of this malpractice action against them was self-evident. In addition,
appellant's claim that the doctors had an incentive to avoid referring Shea to a specialist was
undercut by evidence that Shea was referred to a specialist -- a gastroenterologist. Appellant has
not shown that the exclusion of the managed-care evidence resulted in prejudice.
We do not conclude that evidence of the financial arrangements that are the basis of managed health
care are never admissible; but in the absence of any plausible link between the financial evidence
and the patient's treatment, the district court in this case did not abuse its discretion in excluding the
evidence.
B. Dr. Esensten's Disciplinary Action
Appellant argues that the district court abused its discretion by excluding impeachment evidence that
Dr. Esensten was professionally disciplined in 1989 for writing medication prescriptions to himself
and asking other physicians to write prescriptions for him in 1986, 1987, and 1988.
Minn. R. Evid. 404(a), 608, and 609 provide that character evidence is not admissible for proving
the witness acted in conformity therewith unless the evidence refers to character for truthfulness or
untruthfulness. Specific instances of conduct may not be used unless the character of a person is an
essential element of a charge, claim, or defense. Minn. R. Evid. 405. There are a few notable
exceptions where a prior bad act is admissible to show motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b).
The district court excluded the discipline evidence, reasoning that the evidence did not fall within an
exception to the general rule that character evidence is not admissible. The district court concluded
that Dr. Esensten's actions in 1986-88 were remote and had no bearing on character for
truthfulness or untruthfulness.
Appellant argues that Dr. Esensten's professional misconduct undercut his credibility and ability to
remember, and ought to have been admitted. We disagree. The district court acted within its
discretion by determining that Dr. Esensten's misconduct was too remote, in time and in nature,
from the alleged acts of malpractice to fall within the exceptions of Rule 404(b). Appellant's offer of
proof does not show how Dr. Esensten's 1986-1988 misconduct affected his ability to remember
his treatment of Shea in 1991-1993. Moreover, this court has observed that admission of prior bad
acts involving drug use for impeachment purposes is not favored because the prior bad acts do not
directly relate to a defendant's truthfulness and honesty. State v. Norregaard, 380 N.W.2d 549,
554 (Minn. App. 1986), aff'd as modified, 384 N.W.2d 449 (Minn. 1986); see also Seelye v.
State, 429 N.W.2d 669, 673 (Minn. App. 1988) (testimony as to the truthfulness or untruthfulness
of a witness distinguished from evidence of drug or alcohol use that may affect a witness's ability to
perceive or to recall her perceptions). Finally, admitting evidence of Dr. Esensten's professional
discipline would have been very prejudicial. We hold the district court acted within its broad
discretion by excluding the evidence.
II.
Appellant next claims that the district court abused its discretion by instructing the jury on the theory
of comparative negligence. District courts are allowed considerable latitude in selecting the language
of jury instructions, and we will not reverse a decision concerning instructions absent an abuse of
discretion. Alhom v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Generally, a new trial is not
warranted if the instructions fairly and correctly state the applicable law. Alevizos v. Metropolitan
Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11,
1990). In addition, a party is entitled to a specific instruction on his or her theory of the case if there
is evidence to support the instruction and it is in accordance with applicable law. Cornfeldt v.
Tongen, 262 N.W.2d 684, 698 (Minn. 1977).
The district court instructed the jury that “the law requires that negligence be apportioned among
those parties found to be negligent in causing Patrick Shea's death.” Special verdict question
number five asked, “Was decedent Patrick Shea negligent in respect to his care and treatment.”
Appellant argues that it is improper to instruct the jury on a theory of comparative negligence in a
medical malpractice case because “it defies common sense to blame the patient for the alleged
medical-malpractice.”
Minnesota courts have long applied principles of comparative fault in medical-malpractice cases.
Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362, 368 (Minn. 1979); Martineau v.
Nelson, 311 Minn. 92, 101-02, 247 N.W.2d 409, 415 (1976), Rosenthal v. Kolars, 304 Minn.
378, 381, 231 N.W.2d 285, 286-87 (1975). In comparing negligence, a jury may consider the
fault of both the physician and patient. See Tomfohr v. Mayo Found., 450 N.W.2d 121, 123
(Minn. 1990) (“Ordinarily, in a death by wrongful act negligence case, any fault attributable to a
patient is compared with that attributable to the defendant medical provider.”).
In this case, respondents presented evidence that Shea did not follow his doctor's advice to quit
smoking, did not take all of his prescribed medication, and knew he was to go immediately to a
hospital emergency room if he had radiating chest pains. We hold that the district court did not
abuse its discretion by instructing the jury to apportion fault.
D E C I S I O N
Because appellant has not shown a plausible link between purported financial incentives to avoid
specialist referrals and the care given the decedent by respondent doctors, the district court did not
abuse its discretion by excluding, as irrelevant and prejudicial, evidence of the managed-care
contracts between the clinic and health insurer. Nor did the district court abuse its broad discretion
by excluding, as irrelevant and prejudicial, evidence of the 1988 disciplinary action concerning one
physician. Finally, the district court did not abuse its discretion by submitting the question of
comparative negligence to the jury.
Affirmed.
Footnotes
[1] “[A] health care providing entity is `capitated' when its compensation arrangement with a
network involves the provider's acceptance of material financial risk for the delivery of a
predetermined set of services for a specified period of time.” Minn. Stat. § 62N.27, subd. 4(1)
(2000).
[2] We note that had the legislature believed that capitation contracts would unduly compromise
standards of care, the nondisclosure of those contracts could have been included among the
extensive list of wrongful acts and nondisclosures that may subject a physician to disciplinary
proceedings. See Minn. Stat. § 147.091 (2000).
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