 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Broehm v. Rochester1/20/2005
iss Broehm's action. Both the extension and the dismissal motions were argued at a hearing before the district court on March 20. After the March 20 hearing, but before the issuance of the court's decision, Broehm submitted a "Supplemental Memorandum." This memorandum included the statement that Broehm wished to preserve the position that expert disclosure was not required because Broehm is entitled to a res ipsa loquitur jury instruction.
The district court denied Broehm's request for an extension, concluding that she had failed to show good cause. The court then granted Mayo's motion to dismiss on the ground that Wick's qualifications failed to satisfy the requirements of section 145.682 (2004). Of particular importance to this concurrence is the fact that the court noted that Broehm had made no claim that Wick had training in the field of surgery or the sub-specialty of thoracic surgery. Nor was there a claim, the court observed, that Wick had assisted in tracheal resection surgery or the postoperative care for such surgery. The court then reviewed each of the four duties Mayo owed to Broehm that were identified in Wick's disclosure. The court concluded that Broehm "failed to provide the required expert witness affidavit that is likely to be admissible at trial." Broehm appealed the extension denial and the dismissal. A divided panel of the court of appeals affirmed, but on slightly different grounds.
I.
In its opinion, the majority fails to adequately address or explain why and how the district court abused its discretion in dismissing Broehm's malpractice action. The opinion summarily concludes that Wick is a nurse and therefore is qualified to provide an expert opinion in support of a nursing malpractice claim. Such a summary conclusion oversimplifies this case. As I shall explain in detail, the district court abused its discretion both by considering Mayo's rebuttal argument--an argument that frames Broehm's claim as one of malpractice for thoracic surgery--and by discounting Wick's characterization of the restraint as a dressing requiring nurses to inspect for skin integrity. The majority opinion leaves us wondering why the district court took the action it did and why the court of appeals disagreed with the district court. It is my hope that I can shed some light on this issue and explain what happened and provide some context when this case is considered upon remand.
A. Requirements of Minn. Stat. § 145.682
I begin by addressing the district court's determination that the expert disclosure submitted by Broehm did not satisfy the requirements of Minn. Stat. § 145.682. As previously noted, the court's determination was based on its finding that Wick was not qualified to offer an expert opinion on the standard of care owed to a patient by a thoracic surgeon. We will reverse a district court's dismissal of an action for procedural irregularities only if the court abused its discretion. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990) (citation omitted). However, statutory construction is a matter of law, which we review de novo. Id. (citation omitted).
Minnesota Statutes § 145.682 applies to any medical malpractice action that includes a cause of action for which an expert opinion is necessary to establish a prima facie case. Minn. Stat. § 145.682, subd. 2 (2004). The statute requires the plaintiff to serve two affidavits upon the defendant. Id. The first affidavit is one of expert review and must be served with the summons and complaint. Id. This affidavit must be signed by the plaintiff's attorney and affirm that the attorney has consulted with an expert whose qualifications provide a reasonable expectation that
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Minnesota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|