A minor, by and through her mother and natural guardian, Amber Nelson, Appellant,

This opinion is nonprecedential except as provided by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
A20-1134

A minor, by and through her mother and natural guardian, Amber Nelson,
Appellant,

vs.

Fairview Health Services d/b/a/ Fairview Lakes Regional Medical Center, et al.,
Respondents,

Allina Health System d/b/a/ Allina Hospitals and Clinics d/b/a/ Allina
Health Forest Lake Clinic, et al.,
Respondents.

Filed August 2, 2021
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CV-18-8104

Paul D. Brandes, (pro hac vice), Villari, Brandes & Giannone, P.C., Conshohocken,
Pennsylvania; and

Shannon C. Carey, Sieben Carey, P.A., Minneapolis, Minnesota (for appellant)

Rebecca Egge Moos, Kelly A. Putney, Mark R. Bradford, Anuradha Chudasama, Bassford
Remele, Minneapolis, Minnesota (for respondents Fairview Health Services, et al.)

Carolin J. Nearing, John M. Bjorkman, Ben Mulligan, Larson King, LLP, St. Paul,
Minnesota (for respondents Allina Health System, et al.)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and Frisch,
Judge.

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NONPRECEDENTIAL OPINION
ROSS, Judge
The circumstances leading to this medical-malpractice case occurred ten years ago
after Amber Nelson went to the hospital, pregnant, reporting vaginal discharge. An
ultrasound revealed significant cervical dilation, prompting doctors to administer
labor-inhibiting and fetal-development medications. Nelson gave birth to a 24-week -old
daughter weighing 1.4 pounds 31 hours after she arrived at the hospital. The child now
suffers from significant health issues . Nelson sued two hospitals and two physicians for
medical malpractice, alleging that they failed to administer the labor-inhibiting medication
soon enough to forestall delivery and failed to administer the fetal-development medication
sufficiently to prevent the child’s health problems. The district court granted summary
judgment dismissing Nelson’s claims, refusing to consider her expert-witness testimony
and concluding that she failed to identify disputed issues of material fact for trial. Our
review of the record leads us to conclude that the district court should not have excluded
the expert testimony but that the testimony nevertheless falls short of presenting a prima
facie case of malpractice. We therefore affirm the summary-judgment decision.
FACTS
The following facts are either undisputed or are based on disputed evidence but
construed favoring Amber Nelson’s malpractice claims.
At about 5:15 in the evening of May 22, 2011, Nelson arrived at the Fairview Lakes
Regional Medical Center reporting “clumpy, blood stained pink, vaginal discharge.” She
was 23 weeks and five days pregnant. A Fairview nurse put Nelson on a fetal monitor,

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which showed no signs of uterine contractions. The nurse notified Dr. Deborah Strand, the
on-call physician. Dr. Strand ordered that fluids be administered and authorized a cervical
examination. The nurse performed the examination and noted 20% cervical effacement.
Dr. Strand sent Nelson home at about 6:45 p.m. with instructions to see her own physician
the next day.
The next day at about 9:00 a.m., Nelson telephoned Allina Health Forest Lake
Clinic requesting to see Dr. Janine Rose, her primary-care physician. Dr. Rose saw Nelson
at about 4:00 p.m. and discovered a “copious amount of tan vaginal discharge” and a
“bluish mass” protruding from her cervix. Dr. Rose considered the possibility of preterm
labor but had never before seen a bluish-mass abnormality. She referred Nelson back to
Fairview for an ultrasound to assess cervical length.
A technician administered the ultrasound at about 7:30 p.m. The ultrasound revealed
that Nelson’s cervix was dilated three centimeters and that her amniotic sac was protruding.
Dr. Rose transferred Nelson to United Hospital at 8:00 p.m. and ordered staff to administer
magnesium sulfate, a tocolytic agent used to delay preterm labor, and antenatal steroids
(ANS), which accelerate fetal organ maturity. Nelson arrived at United Hospital at about
10:00 p.m. By 11:50 p.m., her cervical dilation had increased to between six and seven
centimeters, and doctors moved her to the delivery room. Nelson delivered her baby (whom
we will call Daughter for privacy reasons) an hour later, weighing 635 grams, or about
1.4 pounds.
Daughter spent four-and-a-half months in the newborn-intensive-care unit. Now ten
years old, Daughter suffers from serious developmental delays and medical conditions

4
including prematurity, various brain bleeds, cerebellar hemispheric atrophy, cerebral palsy,
and seizures.
On Daughter’s behalf, Nelson sued respondents Dr. Rose, Allina, Dr. Strand, and
Fairview in 2018 for negligent treatment and medical malpractice. Nelson alleged that her
cervical examinations revealed preterm labor, requiring immediate administration of
magnesium sulfate and ANS. A complete course of ANS, Nelson alleged, would have
reduced Daughter’s risk of being born with morbidities. She also later asserted a so-called
loss-of-chance claim that she did not plead in her complaint.
Nelson retained experts Dr. Noah Hillman, a neonatology specialist, and
Dr. Chukwuma Onyeije, an obstetrics and maternal-fetal specialist. Dr. Hillman opined
that a full course of ANS tends to significantly reduce neonatal morbidity rates and that
receiving a complete course of ANS would have done so for Daughter. Dr. Hillman also
considered but ruled out alternative causes of Daughter’s medical conditions, including
autism, hypoxic ischemic brain injury, infection, and genetic disorder. But he could not
rule out Daughter’s periviability, which is the condition in which a neonate is at a
gestational age approaching viability, even though he acknowledged that Daughter’s
biggest risk factor was periviability regardless of ANS. In other words, Dr. Hillman could
not say that Daughter would not have suffered the same conditions as a result of her
prematurity even with earlier interventions.
Dr. Onyeije opined that the nurse’s original cervical examination revealed possible
preterm labor and that Dr. Strand should have immediately examined Nelson, admitted her
to a hospital, and administered ANS and magnesium sulfate. He said that Dr. Rose also

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should have known that Nelson was likely in preterm labor and t hat she should have
immediately administered ANS and magnesium sulfate and transferred her to a hospital
equipped for childbirth. Nelson’s receiving ANS and magnesium sulfate earlier, according
to Dr. Onyeije, would have reduced Daughter’s risk of harm and prevented her health
problems because magnesium sulfate could have delayed preterm delivery for 48 hours,
allowing for the administration of a full course of ANS. Dr. Onyeije considered Daughter’s
underlying conditions and believed them unable to interfere with tocolysis.
Respondents procured opinion testimony from Dr. Jay Goldsmith, a neonatologist,
and Dr. Jeffrey Boyle, a maternal -fetal specialist, who opined favorably about the care
respondents provided. Respondents moved for summary judgment and moved the district
court to exclude Dr. Hillman’s and Dr. Onyeije’s testimony.
The district court excluded Dr. Hillman’s testimony and granted summary judgment
to the respondents. It determined that Dr. Hillman’s opinion lacked foundational reliability
because his differential diagnosis failed to rule out periviability, and the studies he relied
on were too attenuated from the circumstances of this case. The district court overruled the
respondents’ objection to Dr. Onyeije’s opinion. But it determined that, without
Dr. Hillman’s testimony or other evidence to provide proof of causation, Nelson failed to
offer evidence to create a genuine issue of material fact. The district court did not analyze
Nelson’s loss-of-chance argument because neither Dr. Hillman nor Dr. Onyeije specified
the percentage of lost chance.
Nelson appeals.

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DECISION
We first assess whether the district court correctly excluded Dr. Hillman’s
testimony for a lack of foundational reliability. We then consider whether summary
judgment is appropriate in light of our conclusion about the admissibility of Dr. Hillman’s
testimony.
I
Nelson argues that the district court improperly excluded Dr. Hillman’s testimony
for lack of foundation. A district court should admit expert opinion testimony as evidence
only if it is foundationally reliable. Minn. R. Evid. 702. “Foundational reliability is a
concept that looks to the theories and methodologies used by an expert.” Kedrowski v.
Lycoming Engines , 933 N.W.2d 45, 56 (Minn. 2019). A proponent of expert testimony
must establish the “underlying reliability, consistency, and accuracy” of scientific subject
matter and that the evidence is reliable as applied to the case. Doe v. Archdiocese of
St. Paul, 817 N.W.2d 150, 168 (Minn. 2012). We review for an abuse of discretion the
district court’s decision that an expert witness’s testimony lacks foundational reliability.
McDonough v. Allina Health Sys., 685 N.W.2d 688, 694– 95 (Minn. App. 2004). This
includes its determination of underlying reliability, consistency, and accuracy. Doe,
817 N.W.2d at 164, 168.
Nelson argues that Dr. Hillman based his opinion on valid medical studies
concluding that ANS decrease the occurrence of ongoing morbidities in neonates born at
24 weeks and that the district court therefore abused its discretion by excluding the
testimony. Dr. Hillman justified his opinion based in part on a differential diagnosis

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involving his review of Nelson’s and Daughter’s medical presentati on, his consideration
of possible alternative causes, and his ruling out plausible causes until the most likely one
remained. In simple terms, a differential diagnosis employs a scientifically based process
of elimination of causes, narrowed to a sole cause. See McDonough, 685 N.W.2d at
695 n.3. Although Nelson contends that Dr. Hillman rebutted every plausible alternate
cause, including periviability, Dr. Hillman acknowledged that Daughter’s “biggest risk
factors . . . are her periviability, which includes her extremely low birth weight, regardless
of ANS exposure.” If an expert does not expla in why a plausible alternative cause is not
the sole cause, the expert’s differential diagnosis is necessarily unreliable. See id. at 695
(observing that expert witnesses provided only conclusory denial of potential alternative
causes). Dr. Hillman did not rule out periviability as the cause of Daughter’s morbidities,
and his differential diagnosis is therefore unavailing and cannot by itself qualify his opinion
as foundationally reliable.
After the district court recognized the flaw in Dr. Hillman’s differential diagnosis,
it also concluded that the medical studies he relied on could not support his opinion about
the cause of Daughter’s morbidities. An expert may provide more than one basis for his
testimony, and wholesale exclusion of expert testimony is an abuse of discretion if any part
of the testimony is reliable. Kedrowski, 933 N.W.2d at 58. Dr. Hillman also based his
opinion on medical studies examining the impact of ANS on neonates, and on his personal
experience including clinical observation and research. We therefore examine each.
We first consider whether Dr. Hillman’s personal experience provided a sufficient
basis for his opinion. Dr. Hillman based his opinion in part on his experience, including

8
clinical observation through his practice and research conducted on 26-week -old neonate
sheep, whose lungs reacted favorably to ANS. But the district court did not abuse its
discretion by treating as unreliable Dr. Hillman’s studies on older gestational-age sheep in
the context of developing an opinion about the curative effect of ANS on 24- week-old
unborn children. Similarly within the district court’s discretion was its decision not to credit
Dr. Hillman’s clinical experience. This is because his opinion relies on the underlying
theory that ANS decreases or eliminates the risk of morbidities —a theory in need of
scientific testing supported by studies. When an expert’s opinion involves a scientific test,
the judge must confirm “that the test itself is reliable and that its administration in the
particular instance conformed to the procedure necessary to ensure reliability.” Goeb v.
Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000). Dr. Hillman’s opinion requires us to
consider the medical studies on which he bases it.
We consider whether these studies would compel the district court to deem them
reliable as applied to Daughter, or in other words whether they support Dr. Hillman’s
proffered conclusion that a full as opposed to partial course of ANS would have either
eliminated or reduced Daughter’s ongoing morbidities. Dr. Hillman based his opinion on
12 peer-reviewed medical studies and articles. But eight of them share the same
methodological flaw. They put neonates who received a partial course of ANS and those
who received a full course within the same category when drawing conclusions about the
impact of ANS on birth morbidities. Failure to segregate these classes prevents the
consequent conclusions from providing a jury any basis to rely on Dr. Hillman’s opinion.
A ninth study considered only neonates who received a full course of ANS with no

9
comparison to those receiving a partial course, preventing the study from providing a
sufficient basis for Dr. Hillman’s testimony. And a tenth study did not expressly examine
the impact of ANS on birth complications. Ten of the 12 authorities that Dr. Hillman relied
on therefore afford no basis on which we can say that the district court abused its discretion
by deeming his testimony unsupported.
But we reach a different conclusion from two of the studies. Those studies did
distinguish between full and partial courses of ANS and concluded that 24-week -old
neonates who received a full course of ANS had a reduced likelihood of developing
morbidities. For example, the first study concluded that 69.4% of 22- to 27-week-old
neonates who received a full course of ANS had no cerebral palsy, deafness, or blindness,
and they had a good cognitive score at age 18 to 22 months. The survival rate for neonates
who received only partial ANS decreased from 69.4% to 65.3%. The second study
concluded that the children of mothers who received ANS less than 24 hours before
delivery had an 11.4% chance of severe neonatal brain injury while the children of mothers
who received ANS between one and seven days before birth had a 7.1% risk of severe
neonatal brain injury. Because these two studies support Dr. Hillman’s conclusion that a
full course of ANS would have reduced Daughter’s current morbidities, some of
Dr. Hillman’s evidence is reliable as applied here. The district court therefore abus ed its
discretion by excluding the expert testimony on foundational reliability grounds.
Allina and Fairview’s argument for a different holding is not convincing. They
argue that none of Dr. Hillman’s studies are reliable because ANS cannot improve a
premature infant’s lung function if the infant’s lungs are not sufficiently developed. But

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Dr. Hillman based his opinion on a dozen medical studies and articles that collectively
examined tens of thousands of neonates and all similarly concluded that ANS reduces birth
morbidities in neonates of the same gestational age as Daughter. And as to whether the
studies examine the impact of ANS on pneumothorax or cardiopulmonary arrest, two lung
conditions that ANS had shortly after birth, the record shows that at least one of them does.
That study concluded that ANS reduced all birth morbidities, and it also concluded that the
rate of bronchopulmonary dysplasia, or chronic lung disease, was lower with ANS.
Dr. Hillman testified that pneumothorax is related to lung underdevelopment and that ANS
accelerates lung maturity. Pneumothorax may provoke cardiopulmonary arrest, and a
patient suffering from cardiopulmonary arrest would therefore benefit from ANS-assisted
increased lung maturity. In any event, pneumothorax and cardi opulmonary arrest are
conditions that affected Daughter only shortly after her birth, but Nelson’s claim involves
ten-year-old Daughter’s current morbidities.
II

Although we agree with Nelson that Dr. Hillman’s testimony rested on sufficient
foundation, we agree with respondents that summary judgment is nonetheless appropriate.
The ultimate issue here is whether the district court properly dismissed the suit through
summary judgment, a question we consider de novo. Montemayor v. Sebright Prods., Inc.,
898 N.W.2d 623, 628 (Minn. 2017). We may affirm summary judgment for any valid
reason. Myers Through Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990), review
denied (Minn. Feb. 4, 1991). We will do so only if there is no genuine issue of material

11
fact and the respondents, as the moving parties, are entitled to judgment as a matter of law.
Minn. R. Civ. P. 56.01.
Respondents are entitled to judgment as a matter of law if Nelson cannot establish
a prima facie case of medical malpractice. See Dickhoff ex rel. Dickhoff v. Green,
836 N.W.2d 321, 337 (Minn. 2013). In actions against health-care providers, a plaintiff
establishes a prima facie case of malpractice by “introduc[ing] expert testimony
demonstrating: (1) the standard of care in the medical community applicable to the
particular defendant’s conduct; (2) that the defendant departed from the standard of care;
and (3) that the departure from the standard of care directly caused the plaintiff’s injury.”
Becker v. Mayo Found., 737 N.W.2d 200, 216 (Minn. 2007). Appellate courts have
consistently held that “a plaintiff must prove, among other things, that it is more probable
than not that his or her injury was a result of the defendant health care provider’s
negligence.” Dickhoff, 836 N.W.2d at 337 (quotation omitted). Although causation is
generally a question for the fact finder, whe n reasonable minds can arrive at only one
conclusion, causation is a question of law. Lubbers v. Anderson, 539 N.W.2d 398, 402
(Minn. 1995). That is so here.
Dr. Hillman opined that “[Daughter’s] injuries are due to prematurity and had []
Nelson been timely and sufficiently administered antenatal steroids and magnesium
sulfate . . . she would not have suffered significant, if any, neurologic
damage . . . respiratory complications . . . coagulopathy . . . [or] damage to her brain.” Dr.
Hillman’s conclusion makes separate points, implicating two separate medical-malpractice
theories: a traditional causation theory and a loss-of-chance theory. Alleging that negligent

12
treatment prevented Daughter from being born morbidity -free is akin to alleging that
negligent treatment caused her injury, an allegation that aligns with a traditional
medical-malpractice claim. See Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn. 1993). But
arguing that negligent treatment would have reduced her morbidities is equivalent to
arguing that negligent treatment “diminished the likelihood of achieving some more
favorable outcome,” and therefore comports with a loss-of-chance claim. Dickhoff,
836 N.W.2d at 335 (quotation omitted). Nelson asserted her claims separately before the
district court, but the district court did not assess her loss-of-chance claim because neither
expert testified about actual percentage of chance lost. On appeal, Nelson conflates these
two claims without expressly arguing loss of chance. We separate them and address each
theory in turn.
A. Nelson did not present a prima facie traditional malpractice claim.

Nelson failed to provide sufficient evidence to establish a prima facie case for her
theory that an allegedly negligent incomplete ANS course caused Daughter’s morbidities.
As we have observed, Dr. Hillman’s differential diagnosis and personal experience are
insufficient to support the claim. The studies he relied on for his opinion therefore must
support the conclusion that giving a 24-week -old neonate only a partial ANS dose more
likely than not caused her current morbidities. Although the parties dispute the level of risk
that must be supported to make out a claim (respondents arguing for a “more likely than
not” causation standard and Nelson arguing that the evidence need prove only that ANS
would have reduced the risk of complications), we do not need to specify the required risk

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reduction. This is because the two relevant medical studies on which Dr. Hillman relies
offer a risk-reduction conclusion that, as a matter of law, cannot establish causation.
The two studies concluded that a full course of ANS provided only a marginal risk
reduction over partial ANS, between 4.1% and 4.3%. They also both concluded that, under
either ANS-treatment approach, a neonate had a less -than-probable chance of an
unfavorable outcome ––30.6% with full ANS treatment and 34.7% with partial ANS
treatment, and 7.1% with full ANS treatment and 11.4% with partial ANS treatment,
respectively. An incomplete course of ANS cannot have more than likely caused an
unfavorable outcome if both an incomplete and a full course of ANS result in
less-than-likely-to-occur injuries. Indeed, we have concluded that a medical-malpractice
claim should be dismissed on evidence-insufficiency grounds even when the evidence
established that allegedly negligent treatment increased the chance of an unfavorable
outcome from 15-25% to 30% while the likelihood of a favorable outcome exceeded 50%
regardless of the course of treatment. Fabio v. Bellomo, 489 N.W.2d 241, 245–46 (Minn.
App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). This reasoning compels the same result
here. Both relevant studies that Dr. Hillman relied on establish only a marginal risk
decrease in the context of an overall less-than-likely-to-occur injury. Although Dr. Hillman
opined that a full course of ANS would more likely have eliminated Daughter’s
morbidities, he based this opinion on medical studies that fail to support the conclusion, on
a flawed differential diagnosis, and on personal experience that in turn relies on the
unsupportive studies. Nelson therefore fails to establish a traditional prima facie negligence
case and summary judgment is appropriate.

14
B. Nelson did not present a prima facie loss-of-chance malpractice claim.

We consider last whether Nelson provided sufficient evidence to establish a prima
facie case for her claim that the allegedly incomplete ANS course exacerbated Daughter’s
morbidities. See Schore v. Mueller, 186 N.W.2d 699, 701 (Minn. 1971) (allowing recovery
for “the additional injury over and above the consequences which normally would have
followed from the preexisting condition absent defendant’s negligence,” provided that
plaintiff establishes that a defendant’s negligence caused the aggravation of the condition).
In a loss-of-chance claim, a plaintiff must establish that a “physician’s negligence
substantially reduced [her] chance of recovery.” Dickhoff, 836 N.W.2d at 337. Nelson’s
loss-of-chance theory fails. “The first step in a loss of chance case is to measure the chance
lost.” Id. at 335. We measure damages “as the percentage probability by which the
defendant’s tortious conduct diminished the likelihood of achieving some more favorable
outcome.” Id. (quotation omitted). Neither Dr. Hillman nor Dr. Onyeije specified any
percent by which Nelson’s doctors’ allegedly negligent treatment decreased Daughter’s
chances of being born “with no or just mild disability.” The claim therefore fails as a matter
of law for lack of evidence.
We add that, even if expert opinion had so specified the chances, “the lessened
degree of recovery resulting from the medical malpractice [must] be more than a token or
de minimis amount.” Id. at 334 n.13 (noting that a reduction in chance from 60% to 40%
is, as a matter of law, sufficient) (quotation omitted). The medical opinions on which
Dr. Hillman based his general, unspecified opinion suggest a percentage loss, 4.1% and
4.3%, which would constitute an insufficient, token amount.

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Because we conclude that the district court appropriately granted respondents’
motion for summary judgment, we need not consider Fairview’s cross-appeal contending
that the district court abused its discretion by not also excluding Dr. Onyeije’s testimony.
Affirmed.