Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

This case is a record-breaker – at least on paper. Will the eye-popping verdict be thrown out? It’s likely. But the case is worth evaluating based on the sticker shock alone. And even if the case is tossed, the aftershock may ripple beyond state borders. Let’s introduce our cast.  

The plaintiff is a 17-year-old athlete. The defendants: St. Cloud Orthopedic Associates and St. Cloud Orthopedic Hospital. 

The plaintiff presented at St. Cloud Hospital after an indoor soccer game. A surgeon employed by St. Cloud Orthopedic Associates operated on the injured patient.   

Before continuing, we must pause and make something clear; the surgeon who operated on the plaintiff is employed by St. Cloud Orthopedic Associates. He is not an employee of St. Cloud Hospital – he is an independent contractor. This small detail will make a big difference in a minute.   

Back to the case.  

The plaintiff alleged he developed acute compartment syndrome following surgery and that both St. Cloud Hospital and St. Cloud Orthopedic Associates failed to diagnose and treat his condition. This can be a limb or even life-threatening injury. The jury sided with the plaintiff, thus the potential $111 million payout.   

Let’s itemize that…  

• $500,000 for past medical expenses…  
• $800,000 for future medical expenses…  
• $10 million for past pain and suffering…  
• $100 million for future pain and suffering…  

One might assume the calculations above take into consideration lost wages/lost earning potential. Most med-mal cases involving athletes do make these considerations. According to our source, the jury did not consider these variables. 

Previous stratospheric malpractice verdicts in the state ranged between $20 million and $28 million. $20 million and $111 million are leagues apart. Why does the plaintiff’s team believe they can collect on such a settlement?   

The answer: A previous case. Three cheers for judicial precedent. Time for a brief history lesson; we promise it’s relevant.   

Popovich v. Allina Health is a case that is specific to the state of Minnesota. We’ve summarized below.  

“In Popovich, the Supreme Court held that a hospital may be held vicariously liable for the negligence of independent contractors, reversing a rule that had been in place for more than 30 years that provided that a hospital could only be held liable for the conduct of its employees.  

A patient may now hold a hospital liable for the acts of its independent contractors by showing: 1) the hospital held itself out as the provider of the relevant services, and 2) the patient looked to the hospital to provide care and select medical personnel.”  

The Popovich case ended in 2020. A more detailed summary can be found here – but we’ve covered the relevant points. Recall the designated “important point” from our opening summary. The operating surgeon was not an employee of the hospital. He was an independent contractor.   

Returning to the present: The plaintiff sued St. Cloud Orthopedic and St. Cloud Hospital under a Popovich theory of apparent authority. The plaintiff dismissed the claim against St. Cloud Hospital just before the trial began but did so “without prejudice.” This meant the plaintiff could still look to St. Cloud Hospital in the hope of obtaining the $111 million verdict.  

The case will also test the mettle of the Popovich precedent and potentially impact how physician groups and hospitals collaborate. If the two sides can be held accountable for one another’s mistakes, the potential risk may deter the risk-averse, resulting in fewer partnerships – at least in the state of Minnesota.  

Regardless of where you practice, it pays to pause and consider how cases like this could impact your work.   

Examine contractual indemnification obligations; know who is liable for what and under what circumstances. For example… 

• Consider how/if modes of dress are used to distinguish contractors from employees.  
• Review/install signage that tells patients when care is rendered by independent contractors and not employees.   
• Revise consent forms and other patient-facing documents to explicitly inform patients that care is provided by independent contractors.  

What do you think? Let us know your thoughts in the comments below. 

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.