Peg Otte, et al., Appellants,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0905

Peg Otte, et al.,
Appellants,

vs.

Allina Health System, et al.,
Respondents.

Filed March 22, 2021
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CV-18-11072

Richard E. Bosse, Law Office of Richard E. Bosse, Chtd., Henning, Minnesota; and

Patrick R. Norha, Cloquet, Minnesota (for appellants)

Mark R. Bradford, David E. Camarotto, Bassford Remele, PA, Minneapolis, Minnesota
(for respondents)

Considered and decided by Florey, Presiding Judge; Reilly, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
In this appeal from the denial of their motions for judgment as a matter of law
(JMOL) and a new trial, appellants argue that the evidence did not support the jury’s
verdict, and that the district court abused its discretion by failing to give one jury instruction

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requested by appellants and by giving another instruction over appellants’ objection.
Because the jury’s verdict is supported by record evidence and the district co urt did not
abuse its discretion in instructing the jury, we affirm.
FACTS
Patricia L. Klein (decedent) died on July 13, 2014. Her sisters, appellants Peg Otte
and Kathy Rupp, as trustees and next of kin of decedent, sued respondents, Lizbet D.
Ronning, M.D., decedent’s family physician, and Allina Health System, Dr. Ronning’s
employer, for medical malpractice.
Decedent fell on ice and hit her head in February 2014, severely injuring herself.
She became gravely ill and underwent multiple brain surgeries . As her recovery
progressed, she remained under the care of the neurosurgeon who treated her injuries. He
continued to manage decedent’s neurological issues and postsurgical care until she died.
After discharge from the hospital, decedent, who still ne eded skilled nursing care, moved
to Oak Ridge, an assisted living facility, in Hastings, Minnesota.
On June 26, 2014, Otte took decedent to meet respondent Dr. Ronning because
decedent needed a new family physician. Otte went with decedent because her short-term
memory was impaired , but decedent was able to make her own decisions about medical
care. Decedent and Otte gave Dr. Ronning the name of her neurosurgeon, but Dr. Ronning
had not received decedent’s medical records before her death.
Dr. Ronning described decedent as a “very difficult and complex patient.” In
addition to the recent complicated neurosurgical treatment, decedent had a history of abuse
of pain medications. Dr. Ronning noted that decedent was taking pain medications,

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including Dilau did and OxyContin, which had been prescribed as part of her surgical
treatment by her neurosurgeon. Decedent still had active pain -medication prescriptions
from him. Dr. Ronning did not terminate these prescriptions, but told decedent that she
was “not c omfortable continuing to prescribe medication at this level” and urged her to
consider a pain clinic if her neurosurgeon stopped prescribing them for her. Decedent had
not yet been discharged by him from postsurgical care, and Dr. Ronning stated that
typically a patient would return to the treating physician for questions about ongoing care.
At trial, Dr. Ronning testified, “[T]he medications were being managed by her surgeon, it
was important to follow the surgeon’s plan for the postoperative care.”
Decedent had a return visit with Dr. Ronning on July 10, 2014. Dr. Ronning again
told decedent she was not comfortable prescribing Dilaudid, Oxycontin, and Xanax, and
told her to talk to the neurosurgeon, with whom she had an upcoming appointment. Dr.
Ronning told decedent that if the neurosurgeon stopped writing prescriptions for the pain
and anxiety medications, she would “need to go to the pain clinic in the Twin Cities for
management of this.”
On July 11, 2014, Oak Ridge called Dr. Ronning and left a m essage asking her to
refill decedent’s pain medications, because she would run out of medication on July 13.
Dr. Ronning told Oak Ridge she would not refill the prescriptions “because of the amount
she is on and the patient’s history of abuse of narcotics and addiction,” and directed them
to contact the neurosurgeon. On July 13, Oak Ridge personnel discovered decedent on the
floor in her room, unresponsive and not breathing. Decedent was transported to United
Hospital, where attempts to revive her failed, and she died.

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Otte and Rupp sued respondents, alleging Dr. Ronning had committed medical
malpractice by “negligently and carelessly terminat[ing] opioid drug administration” to
decedent. After a three-day trial, a jury reached a special verdict, finding that Dr. Ronning
had not been negligent. The district court issued findings of fact, conclusions of law, and
an order for judgment in favor of respondents. Appellants moved for JMOL or a new trial,
alleging that the evidence did not support the verdic t and that the district court abused its
discretion by refusing to give a requested jury instruction that Dr. Ronning should be held
to a standard of care equivalent to a specialist for failing to refer de cedent for withdrawal
treatment and by giving an in struction that a patient must follow reasonable advice of a
physician. The district court denied appellants’ motion for a JMOL or a new trial, and this
appeal followed.
DECISION
I. Motion for JMOL
A district court may grant a party’s motion for JMOL when , in light of all the
evidence, a verdict is “perverse and palpably contrary to the evidence.” George v. Estate
of Baker, 724 N.W.2d 1, 6 (Minn. 2006). When considering a JMOL motion, a district
court “must view the evidence in the light most favorable to the nonmoving party and
determine whether the verdict is manifestly against the entire evidence.” Longbehn v.
Schoenrock, 727 N.W.2d 153, 159 (Minn. App. 2007) (quoting Navarre v. S. Washington
County Schs., 652 N.W.2d 9, 21 (Minn. 2002). “The jury’s verdict will not be set aside if
it can be sustained on any reasonable theory of the evidence.” Id. (quotation omitted)).
We review the denial of JMOL de novo. Navarre, 652 N.W.2d at 21.

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Appellants alleged a case of medical malpractice against respondents. The elements
of medical malpractice are (1) a standard of care recognized by medical practitioners in the
community as applicable to the defendant’s conduct ; (2) a breach of the standard of care;
and (3) direct causation of the patient’s injuries by the breach. McRae v. Group Health
Plan, Inc., 753 N.W.2d 711, 717 (Minn. 2008). Appellants argue that the standard of care
required Dr. Ronning to treat decedent’s withdrawal symptoms and that Dr. Ronning
breached that standard by refusing to fill her p rescriptions, taper the medication in an
appropriate fashion, or refer her to a withdrawal specialist, which led to decedent’s death.
Appellants argue that the refusal to refer decedent to a specialist should mandate holding
Dr. Ronning to a higher specialist standard of care.
Viewing the evidence in the light most favorable to Dr. Ronning, as we must under
JMOL standards, the following is supported by the record: (1) Dr. Ronning did not refuse
to refill the prescriptions nor did she terminate the prescri ptions; (2) decedent had active
prescriptions with her neurosurgeon, who was in charge of her postsurg ical care;
(3) Dr. Ronning advised decedent at both appointments that she should contact the
neurosurgeon if she had questions or concerns about her pain medications; (4) decedent
had a continuing doctor -patient relationship with her neurosurgeon and had a scheduled
appointment with him; (5) decedent had no withdrawal symptoms during her appointments
with Dr. Ronning; (6) decedent had pain medication until the day she died; (7) Dr. Ronning
told decedent that if the neurosurgeon would not continue the medication, she would refer
decedent to a pain clinic; and (8) two expert witnesses testified that Dr. Ronning had not

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breached a standard of care and that no r eferral was necessary because decedent was
already under the care of the prescribing physician.
This evidence supports the jury’s verdict. We note that some of appellants’
arguments are not supported by the record: decedent had not run out of medication on July
10, Dr. Ronning did not terminate the prescriptions, and decedent still had active
prescriptions with her neurosurgeon. See Longbehn, 727 N.W.2d at 159 (evidence must
be viewed in light most favorable to nonmoving party). The district court did not err by
denying appellants’ JMOL motion.
II. Motion for a new trial
An appellate court reviews the district court’s decision on a motion for a new trial
for an abuse of discretion. Christie v. Estate of Christie , 911 N.W.2d 833, 838 (Minn.
2018). A motion for a new trial may be based on “errors of law occurring at the trial” or a
“verdict . . . is not justified by the evidence, or is contrary to law.” Minn. R. Civ. P. 59.01.
This includes erroneous jury instructions, if the error was prejudicial to the moving party.
Christie, 911 N.W.2d at 838. The district court has broad discretion in its choice of
instructions, so long as they fairly and accurately reflect the applicable law. Daly v.
McFarland, 812 N.W.2d 113, 122 (Minn. 2012). We review the district court’s jury
instructions for an abuse of discretion. Id. A party is entitled to an instruction if the record
evidence supports the requested instruction. Id.
At issue are two instructions. Appellants requested the instruction “Duty of a
Doctor to Refer,” 4A Minnesota Practice, CIVJIG 80.19 (2014). This instruction states

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A physician has a duty to refer a patient to a specialist if the
physician discovers or should discover that a patient’s
condition is beyond his or her ability or skill to treat with
reasonable success.
If the physician does not refer the patient to a specialist, he or
she is held to the same standard of care that a specialist in
(name of field) would use in similar circumstances.

The district court gave the first sentence of this instruction , concluding that it reflected
appellants’ theory of the case, but refused to give the second sentence. The district court
noted that all of the expert witnesses agreed that “the same standard of care would apply
to Dr. Ronning as to the unspecified physician” to whom appellants argued she should have
referred decedent. Further, Dr. Ronning had no need to refer decedent because she was
still under the care of the prescribing physician, and Dr. Ronning believed she should defer
to his management of the pain medications. Thus, the second part of the instruction was
not supported by evidence, and the district court’s decision was not an abuse of discretion.
Daly, 812 N.W.2d at 122.
Respondents requested, and the district court gave , the instruction “Patient’s Duty
to Follow Instruction s,” 4A Minnesota Practice, CIVJIG 80.28 (2014), which states that
“[a] patient must follow reasonable advice and take reasonable treatment prescribed by the
[doctor].” The district court reasoned that this reflected respondents’ theory of the case‒
that decedent had been told to consult her neurosurgeon but had failed to do so. The record
evidence supports this reasoning. The district court’s decision to give this instruction was
not an abuse of discretion. Id.

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Because the jury instructions fairly and correctly stated the law, the district court
did not abuse its discretion by denying appellants’ motion for a new trial.
Affirmed.