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Broehm v. Rochester1/20/2005
ion, the denial of an extension was not an abuse of discretion.
III.
Finally, Broehm asserts that expert disclosure was unnecessary because the determination of Mayo's negligence was within the common knowledge of laypeople, citing Tousignant v. St. Louis County, 615 N.W.2d 53 (Minn. 2000). Tousignant involved a claim that a nursing home breached a standard of care by failing to follow physician's orders to restrain a resident. Id. at 58. The claim did not involve medical care that required professional judgment. Rather, it involved non-medical, administrative, custodial or routine nursing home care. Id. at 59-60. By contrast, as the court of appeals observed, Broehm's claim alleged medical malpractice "arising from negligent postoperative care." Broehm, 2003 WL 951886, at *3. The claim required a medical expert.
Broehm also asserts that the doctrine of res ipsa loquitur excuses her from expert-disclosure requirements. This issue was neither timely presented before the district court nor adequately briefed on appeal. Generally, we decline to review issues under these circumstances. See, e.g., Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (issue not adequately briefed on appeal); Theile v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (issue not raised in district court).
Affirmed in part, reversed in part, and remanded for further proceedings.
ANDERSON, G. Barry, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
SPECIAL CONCURRENCE
ANDERSON, Paul H., J. (concurring specially).
I agree with the majority's conclusion that this matter should be remanded to the district court for further proceedings, but I write separately because I believe that the majority fails to adequately address the district court's actions, explain our precedent, and unnecessarily limits Amy Marie Broehm's ability to present evidence on remand. Moreover, a full understanding of this case and our precedent requires a more complete development of the facts surrounding Broehm's injury and the procedural history. Accordingly, I begin my special concurrence with a more detailed discussion of the relevant facts.
Following surgery and placement of the head restraint, Broehm was kept in a heavily sedated paralytic condition. Dr. Peter Pairolero testified that it is his policy for his "team" or "service" to manage the head control device during this time period and that if anything needs to be done, " service is supposed to do that." Although Paul Holland, Dr. Pairolero's physician assistant, could not recall any specific directions to the nursing staff, he stated that nursing personnel would have known from past experience that only Dr. Pairolero's service was allowed to adjust or disturb Broehm's head restraint.
On Sunday, December 19, approximately 48 hours after surgery, Broehm began to recover from the sedation. At that time, she complained of a headache and pain in her forehead. Apparently the nursing staff on duty did not act immediately upon Broehm's complaint. Broehm's mother, who was with her at the time, recalled that someone did eventually look beneath the restraint. Broehm's mother stated that, after this inspection, other hospital staff came to the room and the restraint was adjusted. But it is not clear from the available records whether the initial inspection of Broehm's skin was performed by a member of the nursing staff or by a member of Dr. Pairolero's service. According to Broehm's medical chart, at noon on December 19 the "primary s[ervice]" removed the restraint
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