Elliot Kaplan and Jeanne Kaplan v. Mayo Clinic

United States Court of Appeals for the Eighth Circuit · 2011 · Contracts

653 F.3d 720 (8th Cir. 2011)

Updated July 26, 2026

Contractsbreach of contractmedical servicesexpert testimonyjudgment as a matter of lawMinn. Stat. § 145.682formationbreach

Facts

Mr. Kaplan was referred to Mayo after an outside biopsy suggested pancreatic cancer, but he expressed concern to Dr. Nagorney about the weakness of the diagnosis. According to the Kaplans' evidence, after confirming that a Mayo pathologist had diagnosed cancer, Dr. Nagorney told them that during surgery Mayo would biopsy the mass to verify cancer and, if cancer was not found, would close Mr. Kaplan up and not proceed with the Whipple procedure. Dr. Nagorney did not perform an intraoperative biopsy of the pancreatic tissue to verify cancer before performing the Whipple procedure. Post-surgery pathology showed that Mr. Kaplan never had cancer, and the Kaplans claimed damages from the unnecessary surgery.

Issue

Whether the district court properly granted judgment as a matter of law to Mayo and Dr. Burgart on the breach-of-contract claim on the ground that the claim merely restated medical negligence and required expert testimony. Also, whether the evidence was sufficient to allow a reasonable jury to find contract formation, breach, and damages against Mayo and Dr. Burgart.

Rule

To establish breach of contract, a plaintiff must show formation of a contract, breach, and resulting damages. In an action against a health care provider, Minn. Stat. § 145.682 requires an expert-witness affidavit only when expert testimony is necessary to establish a prima facie case; under Minnesota law, expert testimony is unnecessary for matters within the general knowledge of lay people. A straightforward claim that a physician promised to perform a specific procedure and did not do so is an ordinary contract claim that does not require expert testimony when it does not depend on proving violation of a professional standard of care.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Minneapolis, surgeon Lena Ortiz told patient Aaron Cole before abdominal surgery, "Once we open, I will have pathology test a sample from the growth. If that test does not confirm cancer, I will close and not remove the organ." During surgery, Ortiz skipped that promised test and removed the organ; later pathology showed Aaron never had cancer.

Aaron sues the surgical practice for breach of contract based solely on the alleged promise to perform the intraoperative test and stop if it was negative. The practice argues the claim must be dismissed because Aaron has no expert affidavit or expert testimony. What is the strongest response?

Explanation. A medical-services contract claim does not automatically require expert testimony. Under the majority opinion, expert proof is required only when necessary to establish a prima facie case. When the theory is simply that a physician promised to do a specific act and did not do it, the claim is an ordinary contract claim within lay understanding and does not depend on proving breach of a professional standard of care. (Derived from Elliot Kaplan and Jeanne Kaplan v. Mayo Clinic (2011).)