## Facts

- Elliot Kaplan was hospitalized in July 2003 with severe abdominal pain; imaging suggested a pancreatic abnormality, and an outside needle biopsy was read as favoring ductal carcinoma.
- Kaplan was referred to Mayo Clinic for evaluation and possible surgical resection; Kaplan and his family expressed skepticism about the cancer diagnosis.
- At Mayo, Dr. Lawrence J. Burgart reviewed the outside biopsy materials and diagnosed grade 2 infiltrating pancreatic cancer.
- Dr. David Nagorney recommended a Whipple procedure (pancreatoduodenectomy) based on the cancer diagnosis.
- Kaplan alleged that before surgery Dr. Nagorney promised to perform an intraoperative biopsy to confirm cancer and to proceed with the Whipple only if the biopsy confirmed malignancy.
- On August 14, 2003, Dr. Nagorney performed the Whipple; Kaplan alleged no confirmatory intraoperative biopsy occurred before irreversible resection.
- Post-operative pathology of the resected tissue concluded Kaplan did not have pancreatic cancer; findings were consistent with pancreatitis.
- The Kaplans sued for negligent failure to diagnose (medical malpractice) and breach of contract based on the alleged promise; Jeanne Kaplan asserted loss of consortium.

## Issues

1. Whether alleged instructional or evidentiary errors required reversal of the defense verdict on negligent failure to diagnose.
2. Whether the district court erred by granting judgment as a matter of law to Mayo on the breach-of-contract claim on the ground that expert testimony was required to prove breach of an alleged promise to perform an intraoperative biopsy before proceeding.
3. Whether a contract claim could proceed against the pathologist where there was no evidence of any promise or direct communication to the patient.

## Decision

- The court affirmed the judgment for Mayo and Dr. Burgart on the negligent failure to diagnose claim, finding no reversible error affecting the jury’s defense verdict.
- The court affirmed judgment for Dr. Burgart on the contract claim, concluding the record did not support any promise by the pathologist to Kaplan.
- The court vacated the judgment as a matter of law for Mayo on the contract claim and remanded, holding the Kaplans presented sufficient evidence for a jury to find a specific promise and breach without expert testimony.

## Legal Principles

- A patient may bring a breach-of-contract claim against a physician or provider when the claim rests on a specific promise of a particular result or a particular course of conduct, rather than a contention that the provider fell below the professional standard of care.
- A “special contract” claim in the medical setting is supported when damages result from a physician’s promise to perform a certain procedure and failure to do so.
- Expert testimony is not required when the asserted breach turns on whether a discrete promised act occurred (e.g., whether a confirmatory biopsy was performed before proceeding), rather than on medical judgment or the applicable standard of care.
- A contract claim requires evidence of a promise attributable to the defendant; absent evidence of direct communication or any promise by a particular physician, a contract claim against that physician fails as a matter of law.

## Conclusion

The Eighth Circuit left intact the defense verdict rejecting malpractice liability for Mayo and its pathologist, but held that the plaintiffs’ contract theory—based on an alleged promise to perform a confirmatory intraoperative biopsy before completing a Whipple procedure—should have been submitted to the jury without requiring expert testimony, while affirming dismissal of the contract claim against the pathologist for lack of any promise.


Kaplan v. Mayo Clinic, 653 F.3d 720 (8th Cir. 2011)