Damgaard v. Avera Health

108 F. Supp. 3d 689, 2015 U.S. Dist. LEXIS 75007, 2015 WL 3561336
District Court, D. Minnesota·Decided June 3, 2015·No. Civ. No. 13-2192 (RHK/JSM)·Published·Cited by 4 cases

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

This medical-malpractice action arises out of the birth of Plaintiff Katryna Dam-gaard’s daughter, I.L.D., on May 20, 2010. Damgaard alleges the physician handling her labor and delivery, Defendant Mary Olson, M.D., provided negligent care to her and I.L.D. in several respects, resulting in a bevy of health problems for I.L.D. She commenced this action in August 2013 against two entities, Avera Health and Av-era McKennan, which she alleged employed Dr. Olson and are therefore legally responsible for the alleged negligence. Defendants now move for summary judgment on certain of Damgaard’s claims. For the reasons that follow, the Motion will be granted.

BACKGROUND

The record reveals the following facts, which are taken in the light most favorable to Damgaard:

The parties

Damgaard resides in Windom, Minnesota, a rural city approximately 100 miles east of Sioux Falls, South Dakota. She became pregnant with I.L.D. in August or September of 2009 and received care during her pregnancy from Dr. Olson at Av-era Medical Group Windom.

Avera Medical Group is the name under which Avera Health does business in Minnesota.1 It is a South Dakota corporation and health-care conglomerate that is the sole member of Avera McKennan, [692]*692another South Dakota-based health-care conglomerate. Each provides health-care related services, including ownership' of hospitals, nursing homes, and similar facilities, as well as consulting, management and related services to health-care providers affiliated with Avera McKennan or Avera Health.

Dr. Olson is a family-practice doctor employed under a contract with Avera McKennan; she sees patients at Avera Medical Group Windom and has privileges to practice at Windom Area Hospital, where I.L.D. was born. The hospital is owned by the City of Windom and managed by another entity known as Sanford Health. Neither the hospital, the City of Windom, nor Sanford Health has been named a Defendant in this action.

The delivery

On May 17, 2010, Damgaard saw Dr. Olson at Avera Medical Group Windom, when she was approximately 38 weeks pregnant. She was having contractions and exhibiting signs of preeclampsia, a pregnancy-related complication involving high blood pressure. As a result, Dr. Olson referred her to Windom Area Hospital for the administration of Pitocin, a drug used to induce labor. Pitocin was administered at 1:23 pm but ultimately failed to result in I.L.D.’s delivery. Dr. Olson sent Damgaard home at approximately 8:30 pm, while she was still experiencing contractions, with instructions to return to the hospital if contractions increased, but in no event later than 7:00 pm on May 19.

Damgaard returned to the hospital on May 19 at approximately 2:00 pm, advising that she was having contractions every two minutes. She was admitted and placed on a fetal heart monitor. Dr. Olson visited with her at approximately 3:20 pm and again at approximately 8:30 pm; in the interim, she was monitored by several different nurses. At 8:30 pm Dr. Olson intentionally ruptured Damgaard’s membranes, ie., broke her water, which revealed meconium-stained fluid.2 Progress notes indicate the baby continued to experience changes in heart rate (a good thing), with accelerations and “variable decelerations,” but at this point Damgaard’s cervix was only four centimeters dilated. At 10:15 pm Dr. Olson noted Damgaard’s cervix was five centimeters dilated, and at approximately 11:30 pm it had progressed to six centimeters. At that point, after reviewing the fetal monitoring “strips,” Dr. Olson left the hospital.

Approximately 40 minutes later, nurses contacted Dr. Olson after noticing a prolonged deceleration in the baby’s heart rate. At 12:40 am on May 20, Dr. Olson ordered a Caesarian section (C-section), and the hospital’s surgery personnel were notified. Dr. Olson arrived at the hospital shortly thereafter, and Damgaard was transferred to the operating room at 1:17 am. I.L.D. was delivered via C-section at 1:36 am. She was noted as being limp and pale and having shiny, edematous skin; she made no effort to cry and was eventually intubated and suctioned to remove meconium from her lungs. She began to experience symptoms consistent with seizures and, after consulting with another doctor at Avera McKennan Hospital in Sioux Falls, Dr. Olson administered phenobarbital, an anti-seizure medication. She was later transferred via helicopter to Av-era McKennan Hospital, where she was diagnosed as having suffered from hypoxic-ischemic encephalopathy (HIE), or inadequate oxygenation to brain tissue.

Now five years old, I.L.D. suffers from spastic quadriplegic cerebral palsy, seizures, and developmental delay allegedly resulting from the HIE and is unable to feed herself, walk, or control her bowels or [693]*693bladder. Damgaard attributes these maladies to Dr. Olson’s negligence, for which she seeks to hold Avera McKennan and Avera Health responsible.

Damgaard commenced this action on August 13, 2013. Her two-Count Amended Complaint alleges (1) on behalf of I.L.D., medical negligence on the part of “Avera Health and/or Avera McKennan, individually and/or by and through their employees, ... including but not limited to Mary L. Olson, M.D.” and (2) on her own behalf, loss of consortium with I.L.D. as a result of Defendants’ alleged negligence.3 (Am. Compl. ¶¶ 26-34.) With respect to Count I, she alleges Dr. Olson failed to properly assess and treat her and oversee her care in numerous ways and that “Av-era Health and/or Avera McKennan” was/ were negligent by failing to adequately instruct, train, or supervise its employees and by failing to establish, follow, or enforce policies and protocols relevant to the delivery of children. (Id. ¶ 29(a)-(z).) She seeks an award of past medical expenses in excess of $400,000, future medical expenses in excess of $10 million, and lost future earning capacity in excess of $1 million. (Id. ¶ 3.)

Defendants now move for summary judgment on certain of Damgaard’s claims, as discussed in more detail below. The Motion has been fully briefed, the Court heard oral argument on May 20, 2015, and the Motion is ripe for disposition.

STANDARD OF REVIEW

Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The moving party bears the burden of showing that the material facts in the case are undisputed. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc); Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir.2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Beard v. Banks,

Damgaard v. Avera Health, 108 F. Supp. 3d 689, 2015 U.S. Dist. LEXIS 75007, 2015 WL 3561336 (mnd 2015).

108 F. Supp. 3d 689 (Damgaard v. Avera Health) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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