Karmen Michelle Ingersoll, as Trustee for the next of kin of Thomas Wade Ingersoll, 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This opinion will be unpublished and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
A19-1813

Karmen Michelle Ingersoll,
as Trustee for the next of kin of Thomas Wade Ingersoll,
Appellant,

vs.

Innovis Health, L.L.C.,
Respondent.

Filed August 3, 2020
Reversed and remanded
Hooten, Judge

Polk County District Court
File No. 60-CV-17-1135

Seth Zawila, Robins Kaplan LLP, Minneapolis, Minnesota (for appellant)

Rodger A. Hagen, Julia J. Nierengarten, Kate Johnson, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this appeal from the summary judgment of her medical malpractice claims against
respondent medical clinic in a wrongful death action, appellant, who was the wife of

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decedent and the trustee of decedent’s estate, argues that the district court’s analysis of
proximate cause was clearly erroneous. We agree.
FACTS
Appellant Karmen Michelle Ingersoll contends that her husband, the decedent
Thomas Wade Ingersoll, was diagnosed with permanently debilitating rheumatoid arthritis
in 1998. Her husband was treated for his arthritis with various opioid medications
including Vicodin (a combination of hydrocodone and acetaminophen), hydrocodone,
Percocet (oxycodone and acetaminophen), and oxycodone. There was evidence in the
record that opioids are highly addictive and evidence of their long -term effectiveness for
treating chronic pain is limited. Appellant reports that even though her husband had been
taking opioid medication for five or six years, the medication was only periodically
effective at managing his pain. Appellant became aware that her husband was abusing his
opioid medication when he began nasally ingesting it and stealing appellant’s opioid
medication when his medication was in short supply.
Appellant’s husband was first treated by respondent Innovis Health, L.L.C.
(Innovis), in 2009 , when a physician assistant (PA) at the clinic began prescribing him
various opioids. Her husband continued taking these opioid medications until Friday, May
30, 2014, when appellant and her husband met with the PA to discuss further trea tment.
At that time, appellant’s husband informed the PA that oxycodone was no longer
controlling his pain. Appellant informed the PA that she was concerned that her husband
was consuming too much medication and had taken some of her hydrocodone. In her chart
notes, the PA noted that appellant’s husband acknowledged that he was “using too much

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medication,” that he was “in agreement to [go] off his narcotics,” and that the PA was
“concerned about overuse of medication and possible addiction.”
The PA pre scribed methadone, advising appellant and her husband that
“[methadone] will help him with his pain and will prevent withdrawal from opiates, yet [it
is] not a medication to seek a high from.” It is not clear from the record whether or not the
PA informed appellant and her husband of the unique and dangerous properties of
methadone including a delayed peak analgesic effect, which increases the likelihood of
overdose, the signs of an overdose, or the need to seek medical attention if an overdose
was suspected.
As part of the consultation, the PA stated that appellant agreed to manage her
husband’s medication and keep the pills in a lockbox. However, appellant testified that
she had “no control over his [medication]” and was merely told by the PA to put the
medication in a lockbox —something she did not own. Further, appellant stated in her
deposition that she did not remember whether or not she explicitly agreed to control her
husband’s medication or put the medication in a lockbox.
The PA prescribed a ppellant’s husband 60 pills of methadone with instructions to
take 40 mg/day. Appellant’s expert witness opined that this prescription deviated from
accepted standards of practice, which would have called for no more than 11 –17 mg/day,
so as to limit the likelihood of a fatal overdose. The PA acknowledged that she did not
consult with a pain management specialist to determine the dosage and that she based Mr.
Ingersoll’s prescription dosage on dosages prescribed to other patients. Appellant’s expert
witness stated that the accepted standard medical practice for calculating a correct dose of

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methadone is a complex and personalized algorithm based on personal characteristics and
medication history.
Following the Friday appointment, appellant and her husband filled the prescription
for methadone and her husband took control of the bottle. Appellant claimed that she
couldn’t ask for the medication back, and that she witnessed her husband nasally ingest
one dose of methadone before leaving him at home follo wing the Friday appointment.
Appellant’s husband was asleep when she returned. Appellant asserted that she did not
observe her husband ingesting any more medication over the weekend; however, it is not
clear from the record how much medication her husban d actually consumed or how he
ingested that medication. Appellant spent Saturday away from her husband. Appellant
stated that on Sunday, her husband told her that he felt “wobbly” and tired. Appellant
testified that her husband often felt tired after ta king his medication, and that before she
left home she told her husband to lay down . Later that day, her husband died of a
methadone overdose. It is not clear how much methadone was in his system upon his
death.
Appellant sued Innovis as trustee on beh alf of her husband’s estate for medical
negligence in a wrongful death action. Innovis moved for summary judgment. The district
court granted summary judgment on behalf of Innovis , stating that the PA’s alleged
medical negligence was not the proximate cause of her husband’s death as a matter of law
because appellant’s failure to secure her husband’s methadone, and her husband’s nasal
ingestion of the methadone, were superseding causes of her husband’s death and “no
reasonable mind could conclude otherwise.” This appeal follows.

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D E C I S I O N
Appellant argues that the district court erred when it granted summary judgment to
Innovis because the actions of appellant and her husband were not, as matters of law,
intervening, superseding causes of her husband’s death. We agree.
“On appeal from summary judgment, we review whether there are any genuine
issues of material fact and whether the district court erred in its application of the law. We
view the evidence in the light most favorable to the party against whom summary judgment
was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–77 (Minn.
2002) (citations omitted). “We review de novo whether a genuine issue of material fact
exists. We also review de novo whether the district c ourt erred in its application of the
law.” Id. “When reasonable persons might draw different legal conclusions from the
evidence presented, summary judgment must be denied. ” Kenneh v. Homeward Bound,
Inc., 944 N.W.2d 222, 228 (Minn. 2020).
To establish a prima facie case of medical negligence, a plaintiff must demonstrate:
(1) the accepted and recognized standard of care that applies to a particular provider’s
conduct, (2) the provider departed from that accepted and recognized standard, (3) the
provider’s departure from that accepted and recognized standard was a proximate cause of
patient’s harm, and (4) that damages resulted from this departure. Reinhardt v. Colton, 337
N.W.2d 88, 94 (Minn. 1982).
For an act to be a proximate cause of the harm, the act must have been a substantial
factor in the harm’ s occurrence. George v. Estate of Baker , 724 N.W.2d 1, 11 (Minn.
2006). To establish that a defendant healthcare provider was the proximate cause of the

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negligence, the plaintiff must p rove that “ it was more probable that ( the injury) resulted
from some negligence for which defendant was responsible than from something for which
he was not responsible.” Silver v. Redleaf, 194 N.W.2d 271, 273 (Minn. 1972). In general,
whether or not a defendant’s negligence was the proximate cause of a plaintiff’s harm is a
question of fact that is better left to the jury. Canada v. McCarthy, 567 N.W.2d 496, 506
(Minn. 1997) (citation omitted).
Although there can be more than one proximate cause of a harm, the existence of a
superseding cause can relieve the defendant -tortfeasor of any liability for his or her
negligence. Hafner v. Iverson, 343 N.W.2d 634, 637 (Minn. 1984). A superseding cause
is “an act” that is “in no way caused by the defendant’ s negligence, or a force of nature,
occurring after defendant’s negligent act or omission and operating as an independent force
to produce the injury.” Id. (emphasis omitted). Therefore, for an intervening cause to be
a superseding cause, and thereby relieve the de fendant-tortfeasor of liability, the
intervening cause must have: (1) occurred at some point after the original negligence, (2)
“must not have been brought about by the original negligence,” (3) “must have actively
worked to bring about a result which would not otherwise have followed from the original
negligence,” and (4) “must not have been reasonably foreseeable by the original
wrongdoer.” Canada, 567 N.W.2d at 507. All four elements must be satisfied for the
district court to determine that an intervening cause was a superseding cause and thus that
the defendant -tortfeasor was not, as a matter of law, the proximate cause of the harm.
Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992).

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I. It is for a jury to determine if the acti ons of appellant and her husband
were intervening, superseding causes of his death.

Appellant argues that the district court erred when it determined that her failure to
secure her husband’s medication was an intervening superseding cause of his death because
the PA’s prescription of over double the recommended dosage of methadone: (1) allowed
for her husband to overuse the prescription, (2) was sufficient to bring about his death, and
(3) his death was a foreseeable outcome.
A. Reasonable minds may differ as to whether appellant’s actions actively worked
to bring about a result which would not otherwise have followed from the PA’s
alleged negligence.

Appellant argues that the district court erred as a matter of law when it determined
that her “indifference to her agreement to secure and administer husband[’s] . . . methadone
. . . actively worked to bring about a result which would not otherwise have f ollowed.”
Appellant contends that her failure to secure his medication was an inaction, not an
affirmative action, and that her husband would have died even if she had secured the
medication.
The third element of the superseding cause analysis is whether or not an intervening
action actively worked to bring about a result which would not otherwise have followed
from the original negligence. Canada, 567 N.W.2d at 507. The consequence of this
element is that the intervening action changed the “natural” course of events and thus led
to a different outcome. State v. Hofer , 614 N.W.2d 734, 738 (Minn. 2000 ) (relying on
Carlson v. Fredsall, 37 N.W.2d 744, 748 (Minn. 1949)).

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1. Reasonable minds may conclude that appellant never agreed to secure her
husband’s medication.

Appellant argues that any action undertaken by an intervening cause must be an
affirmative act, and not merely a failure to act. However, where a duty arises to act, the
failure to act is sufficient to constitute an intervening cause. See Arnold v. N. States Power
Co., 297 N.W. 182, 187 (Minn. 1941) (stating that “[t]here is no difference in law or morals
between the effects” of inaction or action where a duty exists). Further, appellant argues
that, at worst, her failure to act constitutes comparative negligence.
The consequence of appellant’s argument is that either an agreement between the
PA and appellant to manage and secure her husband’s medication did not exist, or that the
agreement did not create an affirmative duty for appellant to act. Innovis claims that
appellant’s agreement to manage her husband’s medication created an affirmative duty for
appellant to do so, and thus her failure to manage his medication constitutes an act for the
purposes of an intervening cause.
The PA declared that during the Friday appointment appellant agreed to manage her
husband’s medication and keep the pills in a lockbox. However, appellant testified that
she had “no control over his [medication]” and was merely told by the PA to put the
medication in a lockbox—something she did not own. Further, appellant testified that she
“might have” agreed to put the medication in a lockbox, but was “not sure.”
Nevertheless, the district court concluded that an agreement existed between
appellant and the PA and it was appellant’s failure to adhere to this agreement that led to
her husband’s overdose. As the district court did not state why it believed that an

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agreement existed, we can only conclude that the district court made a relative credibility
assessment between the PA’s testimony and appellant’s testimony. Nevertheless, based on
the conflicting testimony alone, reasonable minds could conclude that an agreement to
manage her husband’s medication, resulting in a non -medical professional knowingly
assuming all responsibility for any negligent actions resulting from a medical
professional’s practice of medicine, never existed.
Whether or not appellant and the PA entered into an agreement is a factual question
that relies on assessing the relative credi bility of appellant and the PA, and because
reasonable minds may differ regarding the existence of such an agreement, we conclude
that the district court erred as a matter of law when it determined that an agreement existed
and that appellant’s failure to adhere to the alleged agreement actively worked to bring
about a result which would not otherwise have followed from the original negligence. See
Canada, 567 N.W.2d at 507 (describing the elements of intervening, superseding cause).
2. Reasonable minds may conclude that the PA’s prescribed dosage would
have killed appellant’s husband regardless of appellant’s actions.

Appellant argues that regardless of the existence of an agreement, reasonable minds
could conclude that her conduct did not alter the natural course of events because her
husband would have ingested a deadly dose of methadone even if he took the medication
as directed.
Appellant’s expert testified that “i f [the PA] had calculated and prescribed the
appropriate dose of methadone, [appellant’s husband] more likely than not would be alive
today.” However, the district court did not address whether or not the dosage prescribed

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by the PA, over double the recommended dose, was sufficient to lead to appell ant’s
husband’s death. Indeed, the district court’s conclusion ignores the opinion of the expert
witness, essentially making a credibility determination in which the credibility of the expert
was simply rejected without any analysis or discussion of the r easons behind such a
rejection.
When considering the record in the light most favorable to appellant, STAR Ctrs.,
Inc., 664 N.W.2d at 76, reasonable minds may conclude that the PA’s allegedly negligent
prescription of over twice the recommended safe dosa ge of methadone would have been
sufficient to cause the overdose of appellant’s husband even when taken as directed. Thus,
as reasonable minds may conclude that her husband’s death would have occurred
regardless of appellant’s actions with respect to the alleged agreement, we conclude that
the district court erred when it concluded that appellant’s conduct altered the natural course
of events. Fundamentally, as there are material facts in dispute, it is for a jury to decide if
appellant or her husband’s a ctions were intervening, superseding causes of husband’s
death.
As all four elements of superseding cause must be satisfied for the district court to
determine that an intervening cause was a superseding cause, Wartnick, 490 N.W.2d at
113, and we have concluded that the district court erred when it determined that appellant’s
actions brought about a result that would not otherwise have occurred as a matter of law,
we need not address the other elements of intervening, superseding cause to conclude that
the district court erred when it determined that appellant’s actions were an intervening ,
superseding cause.

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B. Reasonable minds may differ as to whether the nasal consumption of the
methadone by appellant’s husband was an intervening, superseding cause as a
matter of law.

Appellant argues that the district court erred when it determined, without any
subsequent analysis or citation, that her husband’s nasal ingestion of the methadone was
an intervening, superseding cause that independently led to his death. Appellant states that
the record does not contain any evidence that the act of nasally ingesting methadone, and
not the underlying dosage, was sufficient to cause his death.
The third element of the superseding cause analysis is whether or not an intervening
action actively worked to bring a bout a result which would not otherwise have followed
from the original negligence . Canada, 567 N.W.2d at 507 . In order to establish a
foundation for superseding causation, a defendant must provide evidence that the
intervening act “broke the causal chai n.” State v. Lund , 474 N.W.2d 169, 174 (Minn.
1991). When information is not presented to the district court and is not in the record, it is
not properly before this court. 301 Clifton Place L.L.C. v. 301 Clifton Place Condo. Ass'n,
783 N.W.2d 551, 560 (Minn. App. 2010).
Innovis did not present any evidence to the district court that the act of nasally
ingesting methadone could trigger an overdose of an otherwise safe dosage. Further, the
district court did not subsequently discuss the PA’s doubling of the recommended safe dose
and did not consider whether or not the underlying dosage would have been sufficient to
independently cause an overdose and death. Accordingly, the district court’s reliance on
the method of ingestion by appellant’s husband as an event that “broke the causal chain,”

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Lund, 474 N.W.2d at 174, and worked to bring about an event that would not have
otherwise occurred, Canada, 567 N.W.2d at 507, is not supported by the record.
Further, as reasonable minds may conclude that the PA’s allegedly negligent
prescription would have been sufficient to cause the death of appellant’s husband
regardless of his method of ingestion, we conclude that the district court erred when it
determined that the action of appellant’s husband in nasally ingesting the methadone, as a
matter of law, altered the natural course of events so as to be an intervening, superseding
cause. Again, as there are material facts in dispute, it is for a jury to decide if appellant or
her husband’s actions were intervening, superseding causes of husband’s death.
As all four elements of superseding cause must be satisfied for the district court to
determine that an intervening cause was a superseding cause, Wartnick, 490 N.W.2d at
112, and we have concluded that the district court erred when it determined that the actions
of appellant’s husband brought about a result that would not otherwise have occurred as a
matter of law, we need not address the other elements to conclude that the district court
erred when it determined tha t such actions were an intervening, superseding cause.
Therefore, we reverse the district court’s grant of summary judgment and remand to the
district court for further proceedings consistent with this opinion.
Reversed and remanded.