Opinion
No. C7-97-1039.
Filed November 25, 1997.
Appeal from the District Court, Hennepin County, File No. 9520009.
Gary L. Manka, Katz Manka, Ltd., (for appellant).
Kay Nord Hunt, John R. McBride, Lommen, Nelson, Cole Stageberg, P.A., (for respondent Allina).
William H. Leary, Kyle M. Thomas, Geraghty, O'Loughlin Kenney, (for respondent Kearney).
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
We affirm the trial court's conclusion that appellant's medical malpractice claim must be dismissed under Minn. Stat. § 145.682 (1996) (demanding proof of medical evidence).
FACTS/ISSUES
Under section 145.682, plaintiffs are required to file two affidavits. First, subdivision 3(a) requires that an affidavit of expert review accompany the plaintiff's summons and complaint. The affidavit must state that a qualified expert has reviewed the case and opined that the standard of care was breached and as a result the plaintiff was injured. In the alternative, subdivision 3(b) allows submission of an affidavit of counsel to state that expert review could not reasonably be obtained due to the statute of limitations. If this affidavit of counsel is filed, the affidavit of expert review must follow and be served within 90 days of the commencement of the action. In this case, appellant furnished no affidavit when she commenced her action, and the affidavit of expert review she did submit was not filed within the 90-day time period.
Minn. Stat. § 145.682, subd. 6, sets forth a penalty for failing to file an affidavit of expert review: If the affidavit is not filed "within 60 days after demand," the defendant is entitled to "mandatory dismissal with prejudice of each cause of action" requiring expert testimony. In this case, there is no dispute that expert testimony is necessary, and appellant failed to comply with the 60-day time limit.
Under Minn. Stat. § 145.682, subd. 4, a second affidavit must be filed within 180 days of commencing the action. This affidavit (or signed answers to interrogatories) must identify all expert witnesses to be called at trial, as well as "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. The penalty for noncompliance is mandatory dismissal. Id. , subd. 6. Here appellant furnished an expert's affidavit four days before the dismissal hearing, over 14 months after the case was commenced. Appellant does not dispute its untimeliness. Rather, she contends that the content of this affidavit satisfies the mandate for a supportive affidavit. The trial court dismissed due to the mandates of the statute associated with filing deadlines, and the court also found that the affidavit ultimately furnished by appellant did not contain necessary information.
DECISION
Appellant claims that under Sorenson v. St. Paul Ramsey Med. Ctr. , 457 N.W.2d 188 (Minn. 1990), the mandate of Minn. Stat. § 145.682, subd. 6, for dismissal, twice applicable in this case, has no effect if an appropriate affidavit is submitted prior to dismissal. She states that the eventual affidavit fulfills the purpose of the statute to eliminate unwarranted litigation. Sorenson does not support this point of view. Nothing in Sorenson suggests that the statute's time rules can be disregarded. Moreover, the statutory time limits relate to the Sorenson goal of eliminating only poorly supported cases. Id. at 191. An inability to furnish expert affidavits within 180 days buttresses a finding that the claim is without merit.
This case presents a total disregard for the statutory time limits. Additionally, appellant offered no explanation for her untimeliness, nor did she seek a court-approved extension of the time limits. See Stern v. Dill , 442 N.W.2d 322, 325 (Minn. 1989) (time requirements of Minn. Stat. § 145.682 may be extended on a showing of excusable neglect). The trial court did not err in following the statutory mandate to dismiss with prejudice. Under these circumstances, the statute leaves us no reason to review whether the substance of the affidavit that was submitted would have sufficed in the event it had satisfied the statutory time requirements.