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Comstock v. Nippoldt1/29/2002
Appellant brought this action for breach of contract, violation of the Consumer Fraud Act, Minn. Stat. § 325F.68-70 (2000), and breach of consumer warranties under Minn. Stat. § 325G.17-20 (2000), claiming that she contracted for dental implants and a partial lower denture, but instead received a full removable lower denture. The district court dismissed the action with prejudice because appellant failed to comply with the malpractice action expert affidavit requirement of Minn. Stat. § 145.682 (2000). Appellant contends that such affidavits are not required because her case is not one of malpractice. Because we hold that the dental treatment she received fell within the scope of the doctor-patient relationship, we affirm.
FACTS
In May 1997, appellant Darlene Comstock visited the dental office of respondent Dr. Ned Nippoldt to discuss the possibility of receiving a new upper denture and some type of lower tooth replacement. Among the options presented to her, Dr. Nippoldt discussed a procedure whereby an oral surgeon would extract her bottom four teeth and attach five steel pegs to her lower jaw, and Dr. Nippoldt would then implant individual teeth on the pegs. The pegs could also be used to support a removable denture. Comstock agreed to proceed with the implants. Dr. Nippoldt's records, however, reflect that Comstock expressed a preference for a removable denture that would fit over the metal structure.
After the oral surgeon implanted the steel pegs, Comstock waited a year for them to adhere to her jawbone. When she returned to Dr. Nippoldt's office to have an impression made of her lower jaw, one of the pegs became loose and had to be removed. The oral surgeon and Dr. Nippoldt assured her that the four remaining pegs would be sufficient to hold her prosthetic reconstruction, and Dr. Nippoldt fit her with a removable lower denture that was placed over the top of the metal structure. However, immediately after this procedure, Comstock discovered that she had not received the individual permanent dental implants that she believed she had bargained for.
After the complaint was filed, the district court granted Dr. Nippoldt's motion to dismiss based on Comstock's failure to file an expert affidavit as required by Minn. Stat. § 145.682 (2000) for medical malpractice actions. This appeal followed.
DECISION
The issue of whether this case is governed by Minn. Stat. § 145.682 (2000), which requires affidavits of expert testimony in most medical malpractice actions, presents a question of statutory construction. As such, it is a question of law, which we review de novo. Sorensen v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).
Basic rules of statutory construction prescribe that words and phrases of a statute are to be construed according to their plain and ordinary meaning. Baker v. Ploetz, 616 N.W.2d 263, 268 (Minn. 2000). The statute at issue here reads:
In an action alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider which includes a cause of action as to which expert testimony is necessary to establish a prima facie case, the plaintiff must * * * serve upon the defendant with the summons and complaint an affidavit [of expert review] *á* *. Minn. Stat. § 145.682, subd. 2 (2000) (emphasis added).
This statute applies to dentists. Minn. Stat. § 145.682, subd. 1 (2000). Therefore, even though this action sounds in contract, if it alleges error, mistake, or malpractice, and if expert testimony is necessary to establish a prima facie case against Dr. Nippoldt, the plain language of the statute states that exp
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