*1 his name was re- might get killed if recross, lied he admitted he had vealed. On HARVEY, Appellant, F. James hearing but claimed he had at the omnibus attorney, Stephen county the then informed CENTER, P.A., reveal his Muehlberg, that he would not FRIDLEY MEDICAL al, Respondents. et source. (d) point prosecutor, Robert At this 81-361. No. (the county attorney), new and the

Molstad Supreme Court of Minnesota. retired to chambers with defense counsel counsel moved for the trial court. Defense Jan. 1982. alternatively for a outright dismissal or prosecutor stated that he mistrial. development this

totally surprised about it

that he had had no communication However, opposed predecessor.

from his it, also thinking about

dismissal after Finally, after careful

opposed a mistrial.

deliberation, the de- the trial court denied

fense motions. this is con

We believe that

trolled our decisions State

Schwantes, (Minn.1982), 314 N.W.2d 243 Zeimet,

and State v.

(Minn.1981), new defendants

trials because of the state comply discovery with the rules. present prosecutor instant concede, willing to

stated that he was issue, deciding the that his perjury

predecessor had learned of Thus, hearing. of the omnibus

the time discovery rules

failure to issue, difficult

was conceded. The more gave trial court careful consider

which the

ation, prejudiced is whether defendant discovery rules. Al

by the breach of the

though did not artic defense counsel trial prejudice

ulate the claim

court, upon reflection that we are satisfied unlikely that defense counsel extremely

it is questions

would have asked the which elicit damaging evidence about the infor

ed the tips guards

mants’ if he had not been hearing the omnibus into believ

misled at guards received no such

ing that possible it is that without

tips. Because have

damaging testimony, would to credit defense testi

been more inclined the error

mony, we cannot conclude

was harmless. for new trial.

Reversed and remanded *2 13, 1979, Harvey experienced

On March pain in his neck and shoulder after an acci- dent at work. He was seen at the Marshall, Medical Center Dr. John a family practitioner, X-rayed the area. who X-rays suggested Examination presence long of a 1Viinches and n inch trapezius wide muscle of Harvey’s neck. There was no entrance Harvey explain wound or scar and could not object’s presence. Because he was un- nature, object’s certain of the Marshall sent radiologist to a recom- Floyd, Harvey mended that see Dr. Charles general surgeon a who consulted with Mar- group. shall’s 22,1979, Harvey March was examined On an area of resist- detected Floyd ance in the neck muscle. went to the X-ray department to review the films but had not been returned the radiolo- gist. He contented himself with the radiol- ogist’s report and made no further effort to Floyd obtain the recom- X-rays. actual object mended that the be removed out- patient surgery under local anesthesia. days Harvey Four later went emergency Unity Hospital room at for the surgery. Floyd again examined him and Paul, Moosbrugger, ap- Gordon C. St. detected resistance in the muscle. He pellant. anesthetic, injected made an incision O’Loughlin Geraghty, Kenney tissue, & and through fatty began to ex- Paul, Mahoney, respon- plore Robert M. deeper St. the muscle fibers and tissue. inject- dents. object, When he did not locate the ed more anesthetic and extended the inci- any foreign sion. He still could not find object object and concluded that either the deep using out-pa- was too to recover an SCOTT, Justice. object tient or that there was but rather a calcification of fibrous tissue Harvey appeals Plaintiff James F. from a lighted up X-ray. on He removed a directed verdict favor of defendants sample of fibrous tissue and closed the Floyd Charles P. and Associated wound. The fibrous tissue was normal. Ltd., in malpractice. this action for medical Floyd April The sole issue on is whether returned on Although sufficient evidence on the for removal of the sutures. jury question. having pain, cause to raise a he was still it was normal to We procedure. Floyd district court that the told to come considered in problems. Harvey its and with back if he had further all reasonable Floyd August inferences favorable to Har- did not return to but in therefore, vey, was inadequate sought problem we af- he for his neck firm. at the Clinic. were taken Stillwater jury reasonably could have inferred from presence the continued which indicated Floyd that evidence that had used foreign object. comparison of these X- foreign body. In he would have located the reveals that the rays with the earlier ones view, however, the contribution of X- our upward outward migrated ray success is a mat- information toward the surface of the skin. expertise ter testimo- of medical Hospital Ramsey Paul was removed St. *3 ny concerning the relative success rates of supervision Perry. of Dr. John under the surgery using X-rays surgery and without The took 10 minutes under local using X-rays required. anesthesia. The was a shard of glass. expert testimony is When essen against the plaintiff’s proof, commenced this suit tial to a it “must demon Center, probability Fridley Medical Dr. and As- strate a reasonable that defend Ltd., negligence ant’s was the cause of Floyd’s group. sociated Dr. Jones, injury.” Walton v. 286 N.W.2d the complaint alleged negligent 710, (Minn.1979)(emphasis original). 715 in by failing foreign body to remove the stated, Alternatively testimony must estab causing scarring, disfigurement pain and probable lish that “it was more that $50,000. requested damages [the and of injury] negligence from some for resulted Fridley voluntarily dismissed the Medical responsible than from defendant against but his case the Center responsi something for which he was not At of the remaining defendants. the close 653, Knowles, 281 N.W.2d ble.” Smith plaintiff’s the trial court de- Redleaf, (Minn.1979)(quoting 656 Silver verdict on fendants’ motion for a directed 463, 465, 194 N.W.2d 273 292 Minn. provided ground the that had not (1972)). testimony that failure to care, i.e., with the standard of failure Harvey attempted to establish his X-rays, examine the was the direct cause of through testimony Perry. the case i.e., injury, glass. the failure to remove the Perry expressed opinion the that a sur Dr. geon exercising due care would review X- A motion for directed verdict surgery. rays proceeding before with That presents question regarding of law the that use opinion gives rise to an inference sufficiency present of the evidence to a fact X-rays extent enhances the of to some appropriate jury determination. finding chances of success. A motion, For the trial court however, causation, of based on such testi must consider the record in its necessarily prod mony alone would be the favoring treat as credible the evidence the conjecture speculation since Dr. uct of may party adverse and all inferences that Perry did not indicate that the failure reasonably be drawn from that evidence. the unsuc- X-rays probably caused consult duty If it would be the court’s to set fact, sug Dr. cess. manifestly contrary aside a verdict as it was gests he would not that that against the a directed verdict probable surgery’s that the more granted. Berghuis should be Zinnel v. Con reviewing resulted from Co., (Minn.1979). struction other cause: than from some applies This court the same standard. Doctor, x-ray Q taking of film does malpractice Causation in a medical in a situation such as this guarantee proved by expert testimony case must be doctor will be successful that the when the not within the common issue is body? locating foreign knowledge laymen. of Waistad v. See Uni A Not at all. versity Hospitals, of Minnesota F.2d (8th 1971). Harvey argues Q you occasions that Cir. Have there been expert testimony utility physicians that of where established have been aware size, foreign bodies with determining shape exploring been unsuccessful? that benefit films have location of a fact, Very often. As a matter of we locate the more inch-long, wedge- than one many discourage patients being times shaped piece glass, and did remove it. explored foreign bodies if we speaks The action for itself. Fridley If they don’t think are harmful because Clinic had consulted the it is reason- very we often do not find them. able to assume too would have located and removed it. circumstances, entirely Under these it was proper to direct a verdict in defendants’ Therefore, I would reverse and remand favor. for a new trial.

Affirmed. PETERSON, (dissenting). Justice

YETKA, (dissenting). Justice in was, my opinion, There adequate testi- mony should have been WAHL, (dissenting). Justice surgery consulted before Medical *4 I portion Center. A specifically majority opinion cited in the KELLEY, JJ., took part OTIS was this: the consideration or decision of this case. Q. your What is opinion?

A. surgeon going think that a who is explore body an area of the for a

foreign body ought to look at

X-rays themselves. course,

Of in this the doctors at the

Stillwater Clinic did consult the did