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Johnson v. Montgomery8/28/2001
Audrey Johnson appeals the dismissal of this medical malpractice action for failure to identify the allegedly negligent acts or omissions as required under Minn. Stat. §á145.682 (2000). We affirm.
FACTS
In the spring of 1997, Earl Johnson was experiencing breathing problems. He was diagnosed with nasal polyps at the Attentive Care Clinic and was referred to respondent Mark H. Montgomery, M.D., at respondent Oakdale Ear, Nose and Throat Clinic, P.A., for possible surgery to correct the breathing problem.
On June 9, 1997, Dr. Montgomery examined Johnson and, after discussing the risks and benefits, tentatively scheduled surgery for June 23, 1997. Dr. Montgomery then informed the Attentive Care Clinic, as Johnson's primary-care provider, of the pending surgery and requested that they perform a pre-operative history and physical to determine whether Johnson was a suitable candidate for the planned procedure. On June 19, 1997, Jeffrey Olive, M.D., of the Attentive Care Clinic conducted the pre-operative examination.
On June 23, 1997, the morning of the surgery, Dr. Montgomery reviewed Dr. Olive's notes from the pre-operative examination. Dr. Olive's notes stated that there were no medical contraindications for surgery. Nevertheless, in reviewing the notes, Dr. Montgomery observed that Johnson suffered from various conditions of concern and thus asked Johnson whether any of those conditions was active. Johnson told him that the problems were not active, and Dr. Montgomery proceeded with the surgery. Johnson died on the following day.
On July 30, 1998, Audrey Johnson, individually and as trustee for the next-of-kin of Earl Johnson, commenced this medical-malpractice action against Dr. Montgomery and the Oakdale Clinic. In January 1999, Johnson served her Affidavit of Expert Identification pursuant to Minn. Stat. § 145.682 (2000). The affidavit, dated January 19, 1999, identified plaintiff's expert as Dr. Marcelo Hochman, a board-certified otolaryngologist, and opined that if Johnson had been properly evaluated prior to surgery, the procedure would not have been recommended.
On October 16, 2000, Dr. Montgomery and the Oakdale Clinic moved for dismissal with prejudice, asserting that plaintiff's affidavit of expert identification was insufficient under Minn. Stat. § 145.682. The district court heard arguments on the motion and subsequently dismissed, concluding that the affidavit was insufficient under Minn. Stat. § 145.682 because it did not clearly set forth the acts or omissions that violate the standard of care.
DECISION
Under Minn. Stat. § 145.682 (2000), a plaintiff who brings a medical-malpractice claim must file an affidavit that identifies (1) qualified experts who intend to testify; (2) the substance of their testimony; and (3) a summary of the basis for the experts' opinions. Id., subd. 4(a). The affidavit must state the expert's opinion that "one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff." Id., subd. 3(a). Failure to comply with the affidavit requirements mandates dismissal of the plaintiff's cause of action with prejudice. Id., subd. 6; Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577 (Minn. 1999).
Absent an abuse of discretion, this court will not reverse a district court's dismissal of a suit pursuant to Minn. Stat. § 145.682. Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn. 2000). In determining whether to dismiss a claim under Minn. Stat. §á145.682 for the inadequacy of an expert affidavit, the district court must read the affidavit as a whole. See Demgen v. Fairview Hosp. & Healthcare Serv., 62
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