Malpractice lawsuit revived in case of woman given cancer-riddled pancreas

A previously dismissed malpractice lawsuit for a woman whose death was caused by a transplanted pancreas riddled with cancer cells should get its day in court, the Minnesota Court of Appeals ruled this week.

Dr. Ty Dunn breached the state's law on standard of care by accepting the donated organ for transplant into Jodie Shierts, 36, of Pequot Lakes, Minn., the court said. Although Dunn did not know the pancreas was diseased, she should have more thoroughly screened the donor because of questions about his death, originally thought to be from meningitis, it said. Had she done so, the diseased pancreas would not have been transplanted.

Shierts, who needed kidney and pancreas transplants because of diabetes, received the diseased organ in March 2007. Five months later, she died of severe sepsis related to T-cell lymphoma 5. She left behind a husband, a 3-year-old son and a large extended family.

"I'm sure the family is happy," attorney Kay Nord Hunt, who is representing the trustee for Shierts' heirs, said of the ruling. "The Court of Appeals' decision is in accordance with Minnesota law. Now the suit can go to trial and be heard on its merits."

Jennifer Waterworth, the lawyer representing Dunn and others named in the suit, said she couldn't comment because of the pending litigation. Waterworth could ask the state Supreme Court to review the case. If not, the case will go to trial in Hennepin County District Court.

At the end of 2006, Shierts was diagnosed with renal disease, and required kidney and pancreas transplants. She received a kidney from her sister and was placed on the pancreas transplant waiting list on March 6, 2007. Three weeks later, Dunn told her that a pancreas was available.

Dunn was told by Life Source, an organ-procurement organization, that the donor was a 15-year-old male whose cause of death was thought to be bacterial meningitis, the court ruling said. Because no specific cause for the meningitis had been found, Dunn made further inquiries about the basis for the diagnosis.

She understood that a cerebral spinal fluid analysis had revealed no bacterial growth, but the lumbar puncture to collect the fluid was carried out after the donor had been given antibiotics. Thus Dunn concluded that the test probably had yielded a false negative because the bacteria had been treated with antibiotics by the time the sample was drawn.

Confirming that the meningitis was bacterial would have been important to Dunn's consideration whether to use the pancreas. Another form of the disease, viral meningitis, could be harmful for a pancreas transplant. She made the decision to use the organ and successfully transplanted it on March 30, 2007.

Shierts' teenage donor had died after a monthlong illness. In early March 2007, he had undergone a lumbar puncture — sometimes called a spinal tap, a procedure that can diagnose serious infections — that did not identify any bacterial pathogens.

Contrary to Dunn's understanding, the procedure was done before he was given antibiotics, and he later received a diagnosis of viral meningitis, the court ruling said. But when the donor was admitted to a different hospital several weeks later, he received a diagnosis of bacterial meningitis, the ruling said.

A month after the donor's death, an autopsy revealed that he actually had died of T-cell lymphoma, a rare cancer, and not of meningitis.

Shierts' doctors were notified and the transplanted pancreas was removed six days later, but cancer had already spread throughout her body. She died on Sept. 12, 2007.

Shierts' sister and trustee filed a wrongful-death malpractice suit against Dunn and University of Minnesota Physicians.

An affidavit was filed that identified Dr. Paul W. Nelson as the plaintiff's testifying expert. He was going to testify in court that the standard of care governing physicians and other health care professionals engaged in transplant surgery requires that an organ not be accepted "unless and until it has been determined likely safe and suitable for transplantation."

That standard of care was breached when Dunn didn't review relevant medical records regarding the donor's death and didn't confirm the cause of death, the ruling said. If it had been followed, "they would have been duty-bound to reject the pancreas because enough uncertainty surrounding the donor's cause of death existed to constitute a foreseeable danger in accepting any of his organs," it said.

Nelson's affidavit also stated that had she not received the diseased pancreas, Shierts would have survived long enough for a different transplant and lived out her adulthood.

The suit's respondents submitted their own affidavit, and a Hennepin County judge dismissed the suit.

The Court of Appeals concluded that Shierts' trustee had raised legitimate reasons why the suit should move forward and that the district court erred in dismissing it.

The Appeals Court ruling cited a previous case that said the standard of care in medical malpractice cases is up to a jury to decide. The district court overstepped its authority by determining the cause of the donor's death was bacterial meningitis, the higher court said. That court also had reasoned that Dunn hadn't violated the standard of care because she couldn't have foreseen that the donor had lymphoma.

"Negligence is tested by foresight, but proximate cause [of injury] is determined by hindsight," the Appeals Court ruling said.

David Chanen • 612-673-4465