Tammi Broussard and Deborah Vazquez-Martinez v. The United States of America
Tammi Broussard and Deborah Vazquez-Martinez, as trustees for the next of kin of Leroy Krogstad, deceased v. The United States of America
- Katherine Menendez
- 0:23-cv-01857
- U.S. District Court · District of Minnesota
- 19
In Broussard v. United States, Judge Menendez granted summary judgment for the U.S. government and dismissed with prejudice the wrongful-death lawsuit brought by the daughters of veteran Leroy Krogstad, who died one day earlier than planned after VA staff mistakenly removed his breathing tube ahead of schedule, because the plaintiffs could not show any legally compensable damages under Minnesota law.
Families of patients who die in VA or other federal medical facilities and seek damages under the Federal Tort Claims Act, particularly in cases where the decedent was already unconscious and near death when an alleged error occurred; also relevant to wrongful-death plaintiffs in Minnesota seeking emotional-distress-type damages, which Minnesota law does not permit under its Wrongful Death Act.
What happened
In Broussard v. United States, Tammi Broussard and Deborah Vazquez-Martinez — the two oldest daughters of decorated Vietnam veteran Leroy Krogstad — sued the U.S. government under the Federal Tort Claims Act after VA hospital staff in Minneapolis accidentally removed their father's breathing tube on January 21, 2021, one day earlier than the family had agreed upon. Mr. Krogstad, who had been unconscious and unresponsive for more than a week due to acute liver failure and a brain that was not expected to recover, died approximately five and a half hours after the premature extubation. The VA acknowledged the error, apologized to the family, and disciplined the staff involved.
The plaintiffs brought claims for wrongful death and medical malpractice, seeking damages both for their own losses and for any pain and suffering their father may have experienced. Under Minnesota's Wrongful Death Act, a family's recoverable loss is limited to 'pecuniary loss' — meaning things like future financial support, guidance, advice, comfort, and protection — and does not include purely emotional harm such as grief or mental anguish. The government moved for summary judgment, arguing the plaintiffs had no evidence of legally compensable damages, and the plaintiffs responded by describing their grief, the trauma of the experience, and being denied a final goodbye with their father.
Judge Menendez granted the government's motion for summary judgment and dismissed the case with prejudice, meaning it cannot be refiled. On the family's pecuniary loss claim, the court found that because Mr. Krogstad was already unconscious, was not expected to recover, and was scheduled to have the breathing tube removed the very next day, no reasonable jury could conclude that his family lost any reasonably expected future income, guidance, comfort, or support due to the one-day difference. The emotional harms the plaintiffs described — grief, trauma, and being denied a final goodbye — are not recoverable under Minnesota law. On the question of whether Mr. Krogstad personally suffered pain before death, Judge Menendez found that even assuming the family's observations of physical movements and tears could create a factual dispute, the claim still failed because there was no evidence that removing the tube one day early — rather than the next day as planned — would have caused any different experience for Mr. Krogstad, meaning the government's error was not shown to have caused that harm.
The detailed version
CASE: Broussard v. United States of America, No. 23-cv-1857 (KMM/DJF), U.S. District Court, District of Minnesota. JUDGE: Katherine Menendez, United States District Judge. DATE: December 19, 2025.
BACKGROUND: Leroy Krogstad, a Vietnam War veteran and decorated U.S. Marine Corps member, was admitted to the Veterans Administration Medical Center in Minneapolis on January 11, 2021, with acute liver failure and encephalopathy. His condition worsened, and he was placed on a ventilator on January 12, 2021. Because his brain was not expected to recover, family members meeting with VA staff on January 20, 2021 decided he should be extubated (breathing tube removed) on January 22, 2021 and transitioned to comfort care. Social worker Sara Lassig documented this plan in a note acknowledged by multiple staff members. However, on the morning of January 21, 2021, several VA staff members mistakenly believed extubation was planned for that day. ICU nurse Leslie Albrecht-Greco, aware only of Mr. Krogstad's ex-wife Susan and one adult child, confirmed with them and directed respiratory therapist Mark Hawkins to remove the breathing tube. Mr. Krogstad died at 8:40 p.m. on January 21, about five and a half hours after extubation. He had remained unconscious throughout. The VA investigated, found Nurse Albrecht-Greco acted carelessly in directing removal without a physician order, and both she and Mr. Hawkins were disciplined. The VA later apologized to the family at a disclosure meeting.
PROCEDURAL HISTORY: Plaintiffs Tammi Broussard and Deborah Vazquez-Martinez, Mr. Krogstad's two eldest daughters appointed as trustees for his next of kin, filed administrative tort claims with the VA in November 2022, which were denied. They filed suit on June 20, 2023, asserting (1) negligence resulting in wrongful death and (2) medical malpractice under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. The government moved for summary judgment (ECF No. 50). After full briefing, the court canceled oral argument and ruled on the written record.
LEGAL FRAMEWORK: Under the FTCA, the United States may be sued for torts committed by federal employees where it would be liable as a private person under the law of the place where the act occurred — here, Minnesota. Minnesota medical malpractice requires proof of: (1) applicable standard of care; (2) departure from that standard; (3) causation; and (4) damages. These elements also apply to wrongful-death claims based on malpractice. Under Minnesota's Wrongful Death Act (Minn. Stat. § 573.02, subd. 1, as amended effective May 20, 2023 and applicable here because the case was filed after that date), recoverable damages include: (a) all damages suffered by the decedent before death; and (b) the 'pecuniary loss' of the surviving spouse and next of kin. 'Pecuniary loss' is not limited to income but includes loss of reasonably expected aid, advice, comfort, assistance, and protection. It does not include purely emotional damages such as grief, sorrow, or mental anguish.
HOLDING — NO COMPENSABLE DAMAGES:
1. Pecuniary Loss: The court held as a matter of law that Mr. Krogstad's next of kin suffered no recoverable pecuniary loss. Mr. Krogstad was unconscious and unresponsive before any alleged negligence occurred, was not expected to recover brain function, and was already scheduled for extubation the following day. No reasonable jury could find that his family had a reasonable expectation of receiving future income, guidance, advice, comfort, assistance, or protection from him. Plaintiffs pointed to no contrary evidence or caselaw supporting pecuniary loss under these circumstances. The emotional harms identified by plaintiffs — being denied a final goodbye, trauma surrounding his death, and compounded grief — constitute non-compensable purely emotional damages under Frumkin v. Mayo Clinic, 965 F.2d 620 (8th Cir. 1992), and its progeny.
2. Decedent's Pre-Death Damages (Pain and Suffering): The court noted uncertainty but ultimately found it unnecessary to resolve whether the lay testimony of family members — who described observing physical movements and tears after extubation — was sufficient without expert testimony to establish that Mr. Krogstad regained consciousness and experienced pain. The court observed that Minnesota appellate courts have not decided whether expert testimony is required in such circumstances, and found the question underexplored by the parties.
3. Causation: Even assuming the lay testimony could survive a summary judgment challenge on the pain-and-suffering question, the court held that the causation element was fatal to plaintiffs' claim. The alleged negligence was not the manner of extubation but the timing — one day early. The relevant comparison under Minnesota causation law is between what actually happened and what would have happened without the negligent act. Here, that means imagining the identical extubation occurring one day later. The government's expert, Dr. Benjamin Henkle (board-certified in internal medicine, pulmonary disease, and critical care medicine), testified that Mr. Krogstad's physical responses to extubation would not have been any different had it occurred on January 22 instead of January 21. Plaintiffs offered no contrary expert testimony. Therefore, no reasonable jury could find that the premature timing of the extubation was a direct cause of any pain or suffering Mr. Krogstad experienced.
DISPOSITION: Defendant's Motion for Summary Judgment (ECF No. 50) is GRANTED. The case is DISMISSED WITH PREJUDICE. The court declined to reach the government's additional arguments regarding proof of malpractice elements and comparative fault of the plaintiffs.
Reviewer note from the AI+
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