Jolene Luczak v. St. Mary's Medical Center

This opinion is nonprecedential except as provided by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
A23-1548

Jolene Luczak,
Appellant,

vs.

St. Mary’s Medical Center, et al.,
Respondents.

Filed April 29, 2024
Affirmed
Kirk, Judge *

St. Louis County District Court
File No. 69DU-CV-22-1870

Eric W. Beyer, Amy S. Pendergast, Marcia K. Miller, Sieben Carey, P.A., Minneapolis,
Minnesota, (for appellant)

Richard J. Thomas, Chris Angell, Burke & Thomas, PLLP, Arden Hills, Minnesota (for
respondents)

Considered and decided by Johnson, Presiding Judge; Cochran, Judge; and Kirk,

Judge.

NONPRECEDENTIAL OPINION

KIRK, Judge

Appellant challenges the summary-judgment dismissal of her medical-malpractice

claim, arguing that the district court abused its discretion by determining that her medical

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
expert, who is an interventional radiologist, is not qualified to testify as to the standard of

care applicable to a vascular surgeon whose alleged negligence involved the interpretation

of diagnostic images. We affirm.

FACTS

In May 2019, appellant Jolene Luczak sought medical care for right calf pain.

Dr. Christopher Bunch diagnosed her with claudication (muscle pain from reduced blood

flow) due to popliteal artery entrapment syndrome (PAES). 1 PAES is a condition in which

the calf muscle presses on the main artery behind the knee, the popliteal artery, making it

harder for blood to flow to the lower leg and foot; in Luczak’s case, the pressure resulted

from the artery’s aberrant course around the muscle.

Dr. Bunch referred Luczak to vascular surgeon Dr. Christopher DeMaioribus at

respondent The Duluth Clinic Ltd. Dr. DeMaioribus confirmed the diagnosis and

discussed two surgical options for addressing her PAES: (1) a bypass, which would involve

using a grafted vessel to bypass the area of compression; or (2) a decompression, which

would involve division of the calf muscle and moving the popliteal artery into a normal

anatomic position so that it would no longer be compressed. Luczak expressed interest in

a bypass, and surgery was scheduled for August 26 at respondent St. Mary’s Medical

Center.

The day of surgery, Dr. DeMaioribus explained to Luczak that he wanted to see

what her leg looked like inside and then decide whether to perform a bypass or a

1 Luczak does not allege negligence by Dr. Bunch.

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decompression; Luczak agreed. During the surgery, Dr. DeMaioribus elected to perform

a decompression. After decompressing the artery, he performed an intraoperative

angiogram, which showed some residual compression and vasospasm, meaning narrowing

or tightening of the artery. He did a balloon angioplasty, inserting a balloon into the artery

and inflating it to open the area of vasospasm. He then determined the release was

complete and finished the procedure.

Luczak returned to work in late September, but by November her right-calf pain

returned. She underwent an ultrasound of her right leg on December 3, and a magnetic

resonance angiogram (MRA) of her legs on January 15, 2020. The MRA showed abnormal

narrowing within the right popliteal artery.

At a follow-up appointment on February 5, Dr. DeMaioribus reviewed the MRA

and agreed it showed residual narrowing of Luczak’s right popliteal artery.

Dr. DeMaioribus recommended an angiogram and nonsurgical treatment.

Dr. DeMaioribus performed the angiogram on February 11. It revealed what

appeared to him to be an obstruction inside the right popliteal artery, rather than

compression. Dr. DeMaioribus performed a balloon angioplasty to open the artery, but it

yielded no change in the obstruction. He then placed a stent in the popliteal artery, and an

angiogram showed what appeared to Dr. DeMaioribus to be normal blood flow.

The following day, February 12, Luczak reported pain in her left groin, the entry

site for the angiogram. Luczak underwent a duplex ultrasound to screen for a

pseudoaneurysm, which occurs when blood leaking from an injured blood vessel collects

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in surrounding tissue; nurse practitioner Laura Winters and Dr. DeMaioribus interpreted

the ultrasound as negative for pseudoaneurysm.

On February 14, Luczak again reported continued pain in her left groin and recurrent

cramping in her right calf. Winters physically examined Luczak’s groin and performed a

duplex ultrasound of her right leg. In consultation with Dr. Bunch, she concluded that the

stent placed on February 11 was occluded. Dr. Bunch recommended that Luczak follow

up with Dr. DeMaioribus.

On February 19, Luczak reported that her groin symptoms were much improved,

but she had continued cramping in her left leg. Dr. DeMaioribus reviewed the recent

ultrasound and advised that Luczak would require a bypass to alleviate her right leg

symptoms; he said that it was not urgent, the symptoms likely would not worsen, and

Luczak could go on her planned trip to Colombia.

Luczak left for Colombia on February 21. While there, her groin pain returned, and

she sought emergency medical care. Over the course of two weeks, she was treated with

antibiotics for infected hematomas, underwent surgery to repair a pseudoaneurysm in her

left groin, and underwent a separate surgery to repair a rupture in her left iliac artery. She

remained in Columbia to recuperate until March 11.

Two days after Luczak returned to the United States, she was hospitalized again for

infection at the site of the surgical incision in her left groin, and two months later, she was

hospitalized and had a stent placed to address a pseudoaneurysm at the site of the left iliac

artery repair. Her wound fully healed by July 2020, although her PAES remains

unresolved.

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 In July 2022, Luczak initiated this action against St. Mary’s and The Duluth Clinic

(collectively, the clinics), alleging negligence in the form of treatment and diagnostic errors

by their agents and employees, principally Dr. DeMaioribus. She later identified Dr. Scott

Resnick as her medical expert, submitting his curriculum vitae (CV) and his expert report

regarding her care.

Dr. Resnick’s CV indicates that he has more than 20 years’ experience working as

an interventional radiologist and teaching in radiology and vascular surgery departments.

And his expert report states that he has “knowledge of and skill in evaluating vascular

anatomy, the mechanical forces involved in [PAES], diagnosis and treatment of

pseudoaneurysm, and is a true expert in the field of interventional radiology.” Dr. Resnick

proposes to testify to “the accepted standard of care for diagnosis and management of

[PAES] with claudication, angiography, and pseudoaneurysm in the same or similar

circumstances.” He asserts that Dr. DeMaioribus breached the standard of care in the

following ways:

1. During the August 26, 2019 surgery, he failed to use
plantar flexion maneuvers in connection with the
intraoperative angiogram to assess the adequacy of the release
of the popliteal artery.

2. During the August 26, 2019 surgery, he ignored the
final intraoperative angiogram, which showed medial bowing
of the popliteal artery that suggested incomplete
decompression of the artery.

3. He misinterpreted the postoperative ultrasound in
December 2019 and MRA in January 2020 as showing possible
intrinsic popliteal stenosis when both clearly showed
continuing PAES.

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 4. He proceeded with an angiogram on February 11, 2020,
but the only accepted treatment for continuing PAES was
surgery, either another attempt at decompression or a bypass.

5. He placed a stent during the February 11, 2020
angiogram, but a stent is not capable of withstanding external
compression of a popliteal artery in a patient with PAES.

6. He failed to identify a pseudoaneurysm shown by the
February 12, 2020 ultrasound of Luczak’s left groin and failed
to order a follow-up ultrasound when her pain continued on
February 14, 2020. 2

The clinics moved for summary judgment, arguing that Dr. Resnick is not qualified

as an expert in this case because nothing in his CV indicates that he has “any education,

training or experience as a vascular surgeon, in vascular surgery, or surgical treatment of

PAES,” or that he “has treated patients with PAES or patients who have undergone an

attempted surgical repair of PAES.” They also proffered an expert report from vascular

surgeon Dr. Amy Reed, who questioned Dr. Resnick’s qualifications to know the standard

of care for a vascular surgeon, particularly with respect to PAES, which she described as

“a condition that is treated surgically and is so rare that many vascular surgeons will never

perform such a surgery in their entire careers.” The clinics argued that, without

Dr. Resnick’s testimony, Luczak cannot present a prima facie case of medical malpractice

and they are entitled to judgment as a matter of law.

In opposing summary judgment, Luczak argued that all six instances of malpractice

that she alleges “involve interpretation of radiologic imaging and/or performance of

2 Dr. Resnick also asserted that Dr. DeMaioribus breached the standard of care by obtaining

informed consent for a bypass surgery and then performing a decompression surgery, but
Luczak later agreed that she is not making a claim for lack of informed consent.

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angiography,” which “are matters that lie squarely within the expertise of Dr. Resnick.”

She did not address Dr. Resnick’s education, training, or experience related to PAES but

proffered a supplemental opinion from Dr. Resnick and requested that the court consider it

in deciding the clinics’ summary-judgment motion. Dr. Resnick’s supplemental opinion

primarily focuses on his disagreements with Dr. Reed but states, regarding PAES:

[T]he diagnosis of PAES is typically suggested clinically, and
the final diagnosis and classification of PAES is subsequently
made via radiographic/diagnostic imaging studies, such as
ultrasound, CT, MRI, and angiography with provocative
maneuvers. All of these modalities are the purview of the
diagnostic/interventional radiologist. So, while the surgical
care of PAES lies within the specialty of vascular surgery, the
diagnosis of PAES lies within both the specialty of
diagnostic/interventional radiology and vascular surgery. In
fact, I’ve seen and personally diagnosed PAES dozens of times
in my career.

The district court considered Dr. Resnick’s CV, his initial report, and his

supplemental report, and determined that Dr. Resnick is not qualified to testify as an expert

in this case because he lacks “practical experience in dealing with PAES in surgery and

with postsurgical care.” Because the district court concluded that excluding Dr. Resnick’s

testimony means Luczak lacked the necessary medical testimony to present her case to the

jury, the district court granted summary judgment in favor of the clinics. Luczak requested

leave to move for reconsideration, which the district court denied.

Luczak appeals.

DECISION

A district court has “wide latitude” in determining whether there is sufficient

foundation to establish that an expert witness is qualified to state an opinion. Marquardt

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v. Schaffhausen, 941 N.W.2d 715, 719 (Minn. 2020) (quotation omitted). We review the

district court’s decision as to expert qualification under a “very deferential standard” and

will not reverse absent a “clear abuse of discretion.” Teffeteller v. Univ. of Minn., 645

N.W.2d 420, 427 (Minn. 2002) (quotation omitted); see also Williams v. Wadsworth, 503

N.W.2d 120, 123 (Minn. 1993) (applying abuse-of-discretion standard when expert-

qualification issue arose in summary-judgment context). That we might reach a different

conclusion on the matter is an insufficient basis for reversal. Williams, 503 N.W.2d at 123.

The expert qualification issue arises here because a plaintiff alleging medical

malpractice must present expert medical testimony establishing (1) the standard of care

applicable to the defendant’s conduct, (2) that the defendant departed from that standard,

and (3) that the defendant’s departure directly caused the plaintiff’s injury. Dickhoff ex rel.

Dickhoff v. Green, 836 N.W.2d 321, 329 (Minn. 2013). That expert opinion testimony

“must have foundational reliability.” Minn. R. Evid. 702. To demonstrate the requisite

foundation, the plaintiff must present evidence that the witness has “both the necessary

schooling and training in the subject matter involved, plus practical or occupational

experience with the subject.” Marquardt, 941 N.W.2d at 719 (quotation omitted). This

foundation is “best supplied if the expert witness is also a physician, especially a physician

in the same area of practice [as the defendant], but this need not always be so.” Lundgren

v. Eustermann, 370 N.W.2d 877, 880 (Minn. 1985); see also Koch v. Mork Clinic, P.A.,

540 N.W.2d 526, 529 (Minn. App. 1995) (“[A] medical expert need not have a specialty,

experience, or a position identical to a medical defendant.”), rev. denied (Minn. Jan. 12,

1996). Rather, “it is a practical knowledge of what is usually and customarily done by

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physicians under circumstances similar to those which confronted the defendant charged

with malpractice that is of controlling importance.” Cornfeldt v. Tongen, 262 N.W.2d 684,

692 (Minn. 1977) (quoting Swanson v. Chatterton, 160 N.W.2d 662, 667 (Minn. 1968)).

Luczak argues that the district court abused its discretion by determining that

Dr. Resnick is not qualified as an expert in this case because it (1) mischaracterized her

claims as surgical error rather than diagnostic and radiological error, and (2) disqualified

him simply because he is not a vascular surgeon. This argument is unavailing in both

respects.

First, the district court accurately recited the six allegations of medical negligence

detailed in Dr. Resnick’s report, and it recognized that Luczak does not challenge

Dr. DeMaioribus’s “surgical decisions.” But it disagreed that her allegations concern

nothing more than the diagnosis of PAES based on radiological tools: “[D]iagnosis is not

what is at issue here. Rather it is the decisions Dr. DeMaioribus made in surgery and with

postsurgical care, which happened long after the diagnosis was made.” The court reasoned

that, “[u]nder these circumstances, [Luczak’s] expert would need to be able to show

practical experience in dealing with PAES in surgery and with postsurgical care.” That

context-specific description of the circumstances that inform the applicable standard of

care is consistent with caselaw. See Teffeteller, 645 N.W.2d at 426-27 (affirming exclusion

of pediatrician from opining about failure to diagnose morphine toxicity in child who

underwent bone-marrow transplant because he lacked experience treating cancer patients

or patients who have undergone bone-marrow transplants); Swanson, 160 N.W.2d at 667-

68 (affirming exclusion of internist from opining about failure to diagnose complication

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following surgical treatment of arm fracture because he lacked experience in the direct care

of orthopedic patients); see also Cornfeldt, 262 N.W.2d at 690-91 (reversing exclusion of

internist from opining about suitability for surgery following abnormal laboratory results

because he had consulted on such matters, but affirming exclusion as to opinion about

administration of general anesthetic because he lacked comparable contextually specific

experience). As such, that description is not an abuse of discretion.

Second, the district court excluded Dr. Resnick because Luczak failed to

demonstrate that he has the requisite practical experience. Certainly, it is apparent from

Dr. Resnick’s CV that he is an accomplished interventional radiologist, well versed in the

full panoply of radiological tools and knowledgeable about vascular anatomy. And his

reports show that he is familiar with the “mechanical forces involved” in PAES and has

experience diagnosing the condition. But nothing in his CV or his reports indicates that he

has consulted on the use of radiological tools during a PAES surgery, used those tools to

assess or treat PAES patients after surgery, or otherwise acquired experience in the surgical

and postsurgical “management of [PAES] with claudication, angiography, and

pseudoaneurysm”—the very circumstances for which he proposes to articulate the standard

of care.

In sum, we discern no abuse of discretion in the district court’s determinations that

the circumstances underlying Luczak’s claims involve the surgical and postsurgical

treatment for her PAES and that Dr. Resnick lacks the practical experience necessary to

opine as to the standard of care applicable to physicians under those circumstances.

Affirmed.

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