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Gall v. Mayo Clinic3/20/2001
Petition for review denied May 15, 2001.
RENEE GALL, ET AL., APPELLANTS,
v.
MAYO CLINIC, RESPONDENT.
Olmsted County District Court File No. C0-00-185
Kevin S. Carpenter, Carpenter Law Offices, 204 Midsota Center, 3701-12th Street North, St. Cloud, MN 56303 (for appellants) Ann E. Decker, Legal Department, Mayo Foundation, 200 First Street Sw, Rochester, MN 55905; and Paul B. Klaas, Mark J. Chasteen, Dorsey & Whitney, Llp, Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Harten Presiding Judge, Crippen Judge, and Hanson Judge.
The opinion of the court was delivered by: Harten, Judge
Affirmed Harten, Judge
UNPUBLISHED OPINION
Appellants challenge the dismissal of their medical malpractice action for failure to comply with the expert affidavit requirements of Minn. Stat. § 145.682 (2000), the denial of their motions for an extension of time to comply, and the rejection of their claim that Minn. Stat. § 145.682 is unconstitutional. Because we see no abuse of discretion and no error of law, we affirm.
FACTS
Respondent Mayo Clinic surgically removed a lung from appellant Renee Gall as a result of an erroneous pathology report. It is undisputed that the removal was unnecessary. Appellant and her husband, appellant Dennis Gall, served a complaint on respondent alleging medical malpractice. The complaint was accompanied by an affidavit from counsel stating that the expert review affidavit required by Minn. Stat. §á145.682, subd. 3(b) (2000), could not be obtained before the action was commenced. Respondent served an answer in which it demanded appellants' compliance with pertinent parts of section 145.682. Appellants have never served an affidavit of expert review.
But appellants did serve respondent with the disclosure of opinions of an expert they planned to call as a witness, Louis P. Dehner, M.D., a pathology expert. The disclosure stated that Dehner was expected to testify that the pathologist at the Mayo Clinic who interpreted Renee Gall's tumor as a carcinoid tumor fell below the standard of pathology practice with this diagnosis when in fact the tumor in the lung was a non-Hodgkin's lymphoma, small follicular center type with a B-cell immunopheno-type.
The disclosure also described Renee Gall's treatment and explained that Dr. Dehner had reviewed 15 histologic sections of her lung but could not review the frozen sections observed by the Mayo Clinic pathologists because they were not available. The final opinion section of the disclosure reiterated the description of Dr. Dehner's expected testimony:
Dr. Dehner believes the Mayo Clinic pathologists who initially interpreted Mrs. Gall's tumor as a carcinoid tumor fell below the standard of pathology practice with this diagnosis because the tumor in the lung was actually a non-Hodgkin's lymphoma and therefore the lung did not need to be removed.
Respondent moved to dismiss, alleging that appellants failed to comply with the statute both in failing to serve an affidavit of expert review and because their expert witness disclosure did not meet the statutory requirements. Appellants moved for additional time to comply or for a declaration that section 145.682 procedural requirements on expert review and disclosure are unconstitutional. The district court denied appellants' motions and dismissed their action. This appeal followed.
DECISION
1. Dismi
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