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Broehm v. Rochester1/20/2005
the expert's opinion would be admissible at trial. Minn. Stat. § 145.682, subd. 3. This expert review affidavit must state that, in the opinion of the expert, a breach of an applicable standard of care by the defendant resulted in the plaintiff's injury. Id. Section 145.682 does not require identification of the expert or a description of the expert's qualifications in this first affidavit.
The second affidavit required by section 145.682 must disclose the identity of each person the plaintiff expects to call as an expert witness at trial regarding malpractice and causation. Minn. Stat. § 145.682, subd. 4(a). The second affidavit must also disclose "the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion." Id. Section 145.682 allows interrogatory answers to be used as an alternative to disclosure by affidavit so long as the answers are signed by the expert witness and the plaintiff's attorney. Id. The plaintiff must serve the expert disclosure on the defendant within 180 days after commencing the action against the defendant, whether the disclosure is by affidavit or by interrogatory answers. Minn. Stat. § 145.682, subds. 2 and 4(a). Broehm's disclosure of Wick's identity and opinion was made by an interrogatory answer served upon Mayo before the 180-day deadline expired.
At the time Broehm commenced her action, section 145.682 provided that failure to serve the expert disclosure before the deadline expired resulted, upon motion, in the mandatory dismissal with prejudice of each cause of action for which expert testimony was necessary to establish a prima facie case. Minn. Stat. § 145.682, subd. 6 (2000). As noted by the majority, the legislature has since amended section 145.682 to require that a defendant specify in its motion to dismiss any deficiencies in the disclosure and now allows dismissal only if the plaintiff has not corrected those deficiencies before the hearing on the motion to dismiss. Minn. Stat. § 145.682, subd. 6(c) (2004). Under the amended statute, the date for the hearing on the motion to dismiss must be at least 45 days from the date of service of the motion. Id.
We have described the purpose of section 145.682 as being to eliminate "frivolous" medical malpractice claims. Sorenson, 457 N.W.2d at 191. We concluded in Sorenson that the section's procedural dismissal mechanism "seems * * * to have been designed to deal only with cases completely unsupported by expert testimony." Id. To that end, the most important disclosure required by section 145.682 "is the identity of an expert who is willing to testify as to the alleged negligence." Id. (emphasis in original). We have, however, provided some guidance on the content requirements of the disclosure. Section 145.682 does not require a disclosure's contents to be highly detailed, but we held in Sorenson it was not enough for the expert disclosure to simply repeat the facts found in a medical record. Id. at 192. Rather, the disclosure "should set out how the expert will use those facts to arrive at opinions of malpractice and causation." Id. at 192-93. Our decisions following Sorenson have elaborated on the content requirements of an expert disclosure. See, e.g., Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999) (holding an expert's affidavit was insufficient where it failed to provide a detailed statement of a standard of care and failed to outline a chain of causation connecting an alleged breach to an injury). See also Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996); Anderson v. Rengachary, 608 N.W.2d 843, 847-48 (Minn. 2002). But here, Mayo does not challenge the sufficiency of the content of Wick's di
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