Lynda Jo Blom, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0670

Lynda Jo Blom,
Appellant,

vs.

Douglas County Hospital, et al.,
Respondents.

Filed June 3, 2019
Affirmed
Ross, Judge

Douglas County District Court
File No. 21-CV-16-314

Lisa L. Beane, Teresa Fariss McClain, Katherine S. Barrett Wiik, Robins Kaplan LLP,
Minneapolis, Minnesota (for appellant)

Matt A. Paulson, Randall S. Hanson, Megan J. Flom, Camrud, Maddock, Olson & Larson,
Ltd., Grand Forks, North Dakota (for respondents)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Peterson,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
Lynda Blom suffered a heart attack and stroke six months after emergency room
physicians at Douglas County Hospital treated her for reported chest pain and shortness of
breath. Blom sued the hospital and physicians, claiming medical malpractice for having
failed to admit her or order cardiac testing. After a trial during which the physicians
introduced evidence that Blom was not experiencing an acute coronary event when she
visited the emergency room and that she then f ailed to follow doctors’ instructions after
she left, the jury returned a verdict rejecting Blom’s malpractice claims. Blom argues on
appeal that the district court erred by allowing evidence of her com parative negligence,
that the evidence was insufficient to prove she was negligent, and that the district court
should have allowed her to amend her complaint to add a claim of negligent nondisclosure.
We conclude that, because the jury found none of the physicians negligent and Blom has
not challenged that finding, the instructions and findings about her own negligence are
irrelevant and no error concerning the issue can lead to reversal. We also conclude that
Blom identified no facts on which a negligent-nondisclosure claim can rest. We therefore
affirm.
FACTS
Lynda Blom visited Douglas County Hospital’s emergency room in April 2012
reporting chest pain and shortness of breath. Dr. Donald Odland used the “chest pain
protocol” to determine if Blom was experiencing acute coronary syndrome. He
immediately ordered an electrocardiogram, followed by a series of troponin tests over an
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extended period, and a chest x-ray. Dr. Donald Odland consulted with Dr. Thomas
Edwards, who took over Blom’s care. The two agreed from the protocol that Blom was not
experiencing an acute condition, but they believed that the electrocardiogram results
showed abnormalities. They believed that she was m ost likely suffering musculoskeletal
pain unrelated to her heart. Dr. Edwards discharged Blom after a third troponin test
confirmed a normal troponin level. Before discharging Blom, Dr. Edwards advised her that
it was “very important” that she schedule an appointment to follow up with her primary
care provider.
The next day Blom returned to the emergency room reporting severe pain. Dr.
Donald Odland’s brother, Dr. David Odland, treated her. He observed that Blom underwent
the cardiac protocol the previous day with no significant indication of concern. After a
period of observation he discharged Blom, concluding that she most likely was suffering
from musculoskeletal pain. Blom’s discharge instructions stated that the diagnosis of
noncardiac chest pain was “not caused by a heart problem,” and they directed her to consult
with her primary care physician to establish the cause of her pain. The instructions directed
her to return to the emergency room if she experienced chest pain and shortness of breath.
Blom saw her primary care physician two days later. Her physician reviewed Dr.
Edwards’ notes from the first emergency-room visit and saw the diagnosis. Blom’s
physician instructed Blom to schedule a complete physical examination soon. Blom never
scheduled the physical.
Six months later, Blom began experiencing pain and shortness of breath. She did
not immediately check herself into the hospital, call her physician, or visit an emergency
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room. After she experienced these symptoms for five days, s he then checked herself into
the emergency room at Douglas County Hospital, where physicians quickly diagnosed her
with having suffered a heart attack and sent her by ambulance to St. Cloud Hospital for a
cardiology examination and evaluation. The exam ination revealed that Blom’s heart was
failing due to low blood flow, and after treatment for three days, St. Cloud Hospital
discharged her.
A day after the discharge, Blom suffered cardiac arrest. She was flown to Abbott
Northwestern Hospital and underwent heart surgery. She suffered a stroke while in the
hospital. Blom has significant health problems and may need a heart transplant.
Blom sued Douglas County Hospital and the three emergency room physicians who
treated her, claiming medical malpractice and alleging that their negligence caused her
heart attack and stroke. Blom moved the district court to prohibit the defendants from
arguing that her failure to visit the emergency room i mmediately after she began
experiencing chest pain constituted comparative neg ligence. The district court did not
immediately decide the motion and decided it nine days into the jury trial. It found that
evidence existed indicating that Blom failed to get a physical examination and failed to
visit the emergency room when she first experienced s ymptoms. It therefore included a
jury instruction on comparative negligence and listed Blom among the potentially negligent
parties on the special-verdict form.
Blom moved to amend her complaint to add a claim of negligent nondisclosure,
alleging that Dr. Donald Odland and Dr. Edwards had negligently failed to inform Blom
of her electrocardiogram results. The district court denied Blom’s motion.
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The jury returned a verdict finding that the physicians were not negligent, that Blom
was negligent, and that Blom’s negligence was the sole contribut ing cause of her injury.
Blom moved for a new trial, and the district court denied her motion. Blom appeals.
D E C I S I O N
Blom challenges the denial of her motion for a new trial. We review a district court’s
decision to deny a motion for a new trial for an abuse of discretion, Christie v. Estate of
Christie, 911 N.W.2d 833, 838 (Minn. 2018), and we review de novo any claimed errors
of law. Moorhead Econ. Dev. Authority v. Anda, 789 N.W.2d 860, 890 (Minn. 2010). Blom
raises three theories arguing that we reverse the district court’s judgment and order further
proceedings in the district court. None of her theories supports reversing.
We reject Blom’s contention that reversal is necessary to correct the district court’s
alleged error in instructing the jury on comparative negligence and listing Blom as a
potentially negligent party on the special-verdict form. She adds that, even if her inclusion
as a potentially negligent party was appropriate, we should reverse because the evidence
was insufficient to support the jury’s finding that her negligence caused her injur y. The
jury’s verdict defeats both arguments.
The jury found that the accused physicians were not negligent, and Blom has not
challenged that finding. Because the jury found that none of the defendants acted
negligently, and a medical malpractice claim fails without a finding of the defendants’
negligence, see Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn. 1977), the instructions
and finding as to Blom’s negligence are irrelevant to Blom’s appeal. That is, we have no
reason to explore the merit of Blom’s arguments about her own negligence because her
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malpractice claim fails as a matter of law on the uncontested finding that the defendants
committed no malpractice.
We also reject Blom’s argument that the district court abused its discretion by
denying her request to amend her complaint to add a negligent-nondisclosure claim. We
review a district court’s denial of a motion to amend the pleadings for an abuse of
discretion. Hunt v. Univ. of Minn., 465 N.W.2d 88, 95 (Minn. App. 1991). District courts
must freely grant leave to amend a complaint “when justice so requires.” Minn. R. Civ. P.
15.01. The district court may allow an amendment to conform to the evidence presented at
trial. Minn. R. Civ. P. 15.02. But district courts properly deny a motion to amend a
complaint when the additional claim cannot be maintained. Hunt, 465 N.W.2d at 95.
The district court acted within its discretion by finding Blom’s allegation of
negligent nondisclosure lacking. A medical negligent-nondisclosure claim requires the
claimant to establish that the accused physician had a duty to know of a ris k or of an
alternative treatment plan and to disclose it to the patient who must decide whether to
consent to treatment, that the doctor breached that duty, and that the nondisclosure caused
harm resulting in damages. Reinhardt v. Colton, 337 N.W.2d 88, 95–96 (Minn. 1983). The
patient must also prove that a reasonable person in her position would have refused the
treatment had she been informed of the risk. Id. at 96. Because Blom did not consent to
any treatment, the district court concluded that Blom could not establish a claim of
negligent nondisclosure.
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Blom argues that the district court should have recognized her “non-treatment”
negligent-nondisclosure claim, asserting that the Minnesota Supreme Court paved the way
for the claim in two cases in the 1980s. The argument fails.
It is true that the supreme court opined in 1987 that “there may be some
non-treatment situations where the [negligent-nondisclosure] doctrine could be
applicable.” Pratt v. Univ. of Minn. Affiliated Hosps., 414 N.W.2d 399, 402 (Minn. 1987).
And in the following year the supreme court ruminated further that “a duty might arise to
advise the patient of the availability of additional diagnostic tests, which, if given, would
be essentially determinative of the presence of disease.” Madsen v. Park Nicollet Med. Ctr.,
431 N.W.2d 855, 859–60 (Minn. 1988). The first problem with relying on these statements
in Pratt and Madsen for the proposition asserted is that both the text (“may” and “might”)
and the context of each statement (neither forming the basis for the outcome in those cases)
indicate plainly that they are merely dicta, and dicta is no substitute for controlling legal
precedent. See State v. Atwood, 925 N.W.2d 626, 631 (Minn. 2019).
The second problem is that, not only has Minnesota never adopted the expansion of
negligent-nondisclosure claims in this fashion, the Washington Supreme Court opinion that
apparently inspired the Minnesota dicta has fallen out of favor even in Washington. The
Madsen court based its statement on Gates v. Jensen, a Washington case that concluded
that a physician had a duty to inform his patient about additional testing available to detect
glaucoma. 595 P.2d 919, 923 (Wash. 1979). Much more recently, however, the Washington
Supreme Court has explained that its Gates decision has been superseded by statute and its
negligent nondisclosure analysis is no longer viable. Gomez v. Sauerwein, 331 P.3d 19,
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22–23 (Wash. 2014). And our own caselaw contradicts the course Blom asks us to follow.
See Russell v. Johnson, 608 N.W.2d 895, 898–99 (Minn. App. 2000) (reaffirming that
negligent nondisclosure does not involve negligence in the administration of treatment, in
the failure to treat, or in the failure to properly diagnose), review denied (Minn. June 27,
2000). We therefore have no reason to apply the dicta in the Minnesota cases or the
seemingly rejected rationale of the Washington case that prefaced them.
We do acknowledge that the term “treatment” is to be broadly construed for
negligent-nondisclosure cases, and we will so construe it here. See, e.g., Pratt, 414 N.W.2d
at 402 (“‘[T]reatment’ should be construed broadly.”); Madsen, 431 N.W.2d at 860
(construing “treatment” broadly to include orders to be on bed rest). But this construction
does not save Blom’s claim. The emergency room physicians treating her d id not
administer any sort of treatment, however broadly we read the term. Blom pointed to no
facts on which the district court was bound to add a negligent-nondisclosure-of -treatment
claim. We hold that the district court did not abuse its discretion by denying Blom’s motion
to add the claim.
Affirmed.