Organ Transplant Malpractice and the “Proximate Cause”

Shierts v. University of Minnesota Physicians, — N.W.2d — (Minn.App.2014), 2014 WL 7344014

This important – yet, unreported – decision deals with a medical-malpractice action arising out of the patient’s death from cancer contracted from a donated pancreas. The trial court dismissed the action summarily based on the “proximate cause” doctrine, and the plaintiff appealed against that dismissal.

The patient’s physician did not know that the person who donated the pancreas died from cancer. Based on the information received from another hospital, she thought that the donor died from bacterial meningitis and carried out the transplant surgery. Subsequent autopsy revealed that the cause of the donor’s death was not bacterial or viral meningitis, but T-cell lymphoma, a rare form of cancer. The patient’s physician was promptly notified about it, but it was too late. The donated pancreas was determined to contain cancer cells. The cancer was also determined to be widespread in the patient’s body. Three days later, the patient died from that cancer.

The patient’s sister sued the physician for medical malpractice and the ensuing wrongful death, but the trial court dismissed that suit summarily. The court reasoned that the donor’s T-cell lymphoma was unforeseeable because that condition was extremely rare. However, foreseeability depends on the indications of the general risk and not on the risk’s specifics. The plaintiff’s expert testified that the physician breached the applicable protocol by accepting the donor’s pancreas despite indications that the donor had bacterial meningitis or some other illness that would make his pancreas unsuitable for transplantation. Based on that testimony, the court of appeals properly decided that the suit should have gone to trial rather than dismissed.

The appellate decision cited a catchy, but misleading adage, “negligence is tested by foresight but proximate cause is determined by hindsight.” Dellwo v. Pearson, 107 N.W.2d 859, 862 (Minn. 1961). This proposition properly describes the cause-in-fact requirement, which the present suit obviously met, but not the proximate cause doctrine. Under the proximate cause doctrine, the victim’s damage must be foreseeable ex ante as a possible consequence of the tortfeasor’s negligence. Put differently, the victim’s damage must fall within the scope of the general risk created by the tortfeasor’s negligence. The reasons that make the tortfeasor negligent must include the damage that the victim ultimately suffered. Extending the foreseeability requirement to the specifics of the actual damaging event would distort our system of tort liability: see Ariel Porat, Misalignments in Tort Law, 121 Yale L.J. 82, 108-14 (2011).

In the present case, the physician was negligent because she ignored the indications of unknown illnesses that made the pancreas unsuitable for transplantation. This neglect tracks the subsequent complications from which the patient died. For that reason, the plaintiff had a viable malpractice suit against the physician.