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Broehm v. Rochester1/20/2005
Appellant brought a medical malpractice action in connection with injury incurred during post-operative care following tracheal resection surgery. The district court granted defendant's motion to dismiss on grounds that appellant had failed to comply with the expert witness disclosure requirements of Minn. Stat. § 145.682 (2004). The court of appeals affirmed, and we granted further review. Concluding that appellant's expert disclosure was sufficient to preclude mandatory dismissal of a nursing malpractice cause of action, we affirm in part, reverse in part, and remand to the district court for further proceedings.
On December 17, 1999, appellant Amy Marie Broehm underwent tracheal resection surgery, performed by Dr. Peter Pairolero, thoracic surgeon and chief of surgery at respondent Mayo Clinic Rochester, for a congenital narrowing of her trachea. The surgery involved removing a one and a half inch section of the trachea where the narrowing had occurred and reconnecting the two sections of the trachea with sutures. Following tracheal resection surgery, the patient's head and neck must be immobilized for two to three days as hyperextension of the neck could cause the separation of the tracheal sutures, resulting in suffocation. One method used by thoracic surgeons to immobilize the head and neck area is to suture the patient's chin to the chest. As an alternative, Dr. Pairolero designed a head restraint and has employed this method "dozens of times" for over 28 years.
The restraint consists of a surgical towel placed against the patient's forehead and secured by two strips of 2-inch-wide surgical tape attached to a headboard. Paul Holland, a physician assistant who worked with Dr. Pairolero and helped in developing the restraint, constructed the device used on Broehm. The usual practice was for Dr. Pairolero's "team" or "service" to mange the care of the device. On December 19, as Broehm began to recover from sedation, she complained of a headache and pain in her forehead. According to Broehm's medical chart, at noon the "primary s[ervice]" removed the restraint and observed an abraded area on Broehm's forehead. Triple antibiotic medication ointment was applied to the abraded area and the restraint was "redone to remove pressure from site." A plastic surgeon was consulted who recommended additional ointments and gels for the wound, noting that it would heal without difficulty. The wound, however, did not heal properly and left a permanent scar on Broehm's forehead.
Broehm commenced an action against Mayo on July 31, 2001, alleging medical malpractice. As required under Minn. Stat. § 145.682, subds. 2, 3 (2004), Broehm served Mayo with an affidavit of expert review on the day that the suit was filed. Additionally, on January 21, 2002, within the 180-day period required under Minn. Stat. § 145.682, subd. 4 (2004), Broehm served Mayo with an expert witness disclosure signed by Linda Wick, R.N., C.N.P. On January 28, 2002, the last day of the 180-day time period, Broehm filed a motion to extend the 180-day deadline.
Mayo opposed the motion for extension and moved to dismiss Broehm's claim. The extension and dismissal motions came on for hearing on March 20, 2002. On April 9, 2002, without the district court's permission, Broehm submitted a "supplemental memorandum," seeking to preserve the position that expert disclosure was not required because Broehm would be entitled to a res ipsa loquitur jury instruction. In an attachment to the memorandum, Broehm submitted an expert disclosure identifying a plastic surgeon and summarizing his opinion. The district court, without considering the newly filed submissions, denied Broehm's motion for an extension and granted M
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