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Malpractice trial gets postponed in case of Gattuso's wife's death

Philip Gattuso plays with his daughter, Kennedy. (Special to The Forum)

FARGO -- A malpractice lawsuit filed against MeritCare Medical Group by Fargo periodontist Philip Gattuso and his wife before they died is no longer set for trial in February.

Attorneys for both sides want the custody battle for Gattuso's 3-year-old daughter Kennedy resolved first.

Gattuso and his wife, Valerie, filed the lawsuit in August 2008, claiming MeritCare botched an August 2007 surgery to fix her mitral valve and failed to properly diagnose post-operative complications.

Valerie Gattuso died March 30 "as a direct result" of MeritCare's negligence, states the lawsuit, which seeks at least $50,000 in damages.

MeritCare denies any negligence or malpractice.

In a motion filed last week in Cass County District Court, MeritCare asked that the jury trial set for February be continued until after the custody issue is settled.

Judge John C. Irby agreed to reschedule the trial, canceling the February date. A new trial date had yet to be filed Friday.

A custody hearing is set for April 14 to determine a permanent guardian for Kennedy, who was orphaned Oct. 26 when her father was beaten to death with a hammer in his south Fargo condo.

On Nov. 17, Philip Gattuso's brother, Roy Gattuso of Gretna, La., and his wife, Ioana Gattuso, were granted temporary custody of Kennedy for 180 days or until further order of the court, whichever is sooner.

Valerie Gattuso's sister, Regan Williams, is challenging custody.

Williams' father, Gene Kirkpatrick, 63, Jones, Okla., is accused of hiring his handyman, Michael Nakvinda, 41, Oklahoma City, to kill Gattuso because he did not approve of how Gattuso was raising the child.

Minneapolis attorney Kathleen Flynn Peterson, who is representing the Gattusos in the malpractice lawsuit, said she doesn't discuss pending cases.

"But I will say that I think both parties agree that some additional time was needed, given the change in the circumstances that obviously no one anticipated," she said.

With both of the original plaintiffs now deceased, Flynn Peterson filed an amended complaint last week designating Kennedy as the plaintiff with Roy Gattuso as her emergency guardian and conservator.

MeritCare's attorney, Angie Lord of Vogel Law Firm in Fargo, declined to comment on the case, as did a hospital spokesman.

In its motion for a continuance, MeritCare argued that the custody battle is "not simply ancillary but crucial to identifying who is directing this lawsuit."

The Forum of Fargo-Moorhead and the Herald are both owned by Forum Communications Co.