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Crary v. Dr. Hoffman and Associates3/26/2002
Appellant David R. Crary contends that the district court erred in dismissing his medical malpractice lawsuit with prejudice pursuant to Minn. Stat. § 145.682 (2000) for failure to comply with the statute's requirements regarding expert affidavits. We affirm.
FACTS
On December 30, 1997, Crary sought medical advice and possible treatment for a foot problem from respondent Dr. Scott J. Hoffman. Dr. Hoffman performed joint destructive surgery on January 27, 1998, removing the joint of Crary's big toe on his right foot. On September 26, 2000, Crary initiated a lawsuit against Dr. Hoffman and respondents Dr. Hoffman and Associates, P.A. and Dr. David W. Pederson, alleging Dr. Hoffman was negligent for: (1) performing a joint destructive surgery removing the joint on Crary's big toe because such surgery was unnecessary; (2) advising Crary that medication and orthotics would not provide Crary any relief; (3) not informing Crary as to the risks attendant to the surgery; and (4) performing the operation in a way that resulted in Crary's permanent pain and disability.
The relevant facts are uncontested. Minnesota Statute Section 145.682, subdivision 2 requires two affidavits when a claimant pursues a claim against a health care provider in which expert testimony is necessary to establish a prima facie case. The first of these is an affidavit from plaintiff's attorney, which is to be served with the complaint, stating that the attorney has reviewed the case with a qualified expert who opines that one or more of the defendants deviated from the applicable standard of care thereby causing injury . Id. at subd. 3. Crary served his lawsuit without this affidavit of expert review. Although the statute provides a claimant with 60 days in which to cure this defect upon notification and demand by the defendant(s), it is undisputed that Crary never provided this affidavit, despite such demand by counsel for Dr. Hoffman.
The statute also requires a second affidavit to be served within 180 days of commencing suit. Id. at subd. 2(2). This affidavit of expert identification is from the expert witness and must be signed by the expert witness and the plaintiff's attorney. Id. at subd. 4. Crary did provide a skeletal affidavit from a doctor, but it was not signed by counsel. The statute allows for answers to interrogatories to substitute for the affidavit but requires signatures from each testifying expert and counsel. Id. Only Crary signed the answers to interrogatories.
DECISION
A district court's dismissal of a lawsuit pursuant to Minn. Stat. § 145.682 is subject to reversal only when the district court abused its discretion. Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn. 2000); Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996). Construing the requirements under Minn. Stat. § 145.682 involves statutory interpretation, a question of law subject to de novo review, however. Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000). The supreme court has set forth a strict standard for complying with the affidavit of expert identification required under Minn. Stat. § 145.682:
In cases commencing after this opinion is filed * * * we will expect a more complete disclosure. * * * laintiffs will be expected to set forth, by affidavit or answers to interrogatories, specific details concerning their experts' expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them. Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 576 (Minn. 1999) (quoting Sorenson v. St. Pau
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