Fakhro v. Mayo Clinic Rochester

Full title: Flora Fakhro, a citizen of the Country of Bahrain, as trustee for the…

Court: United States District Court, D. Minnesota

Date published: Mar 31, 2004

Civ. No. 02-626 (JNE/JGL) (D. Minn. Mar. 31, 2004)

Opinion

Civ. No. 02-626 (JNE/JGL)

March 31, 2004

Philip A. Pfaffly, Esq., Rider Bennett, LLP, for Plaintiff Flora Fakhro.

Thomas S. Fraser, Esq., and Ann E. Decker, Esq., Fredrikson Byron, P.A., for Defendant Mayo Clinic Rochester

ORDER

JOAN N. ERICKSEN, District Judge

This is a diversity action involving a medical malpractice claim brought by Flora Fakhro, as trustee for the heirs and next-of-kin of Yousif Ahmed Fakhro, against the Mayo Clinic Rochester (Mayo Clinic). Mr. Fakhro died at the Mayo Clinic after doctors there implanted an internal cardioverter/defibrillator (ICD) in him. The case is before the Court on Mrs. Fakhro's motion for sanctions and/or default judgment and the Mayo Clinic's motion to dismiss under Minn. Stat. § 145.682 (2000). For the reasons set forth below, the Court denies Mrs. Fakhro's motion and grants the Mayo Clinic's motion.

I. BACKGROUND

In February 1999, Mr. Fakhro went to the Mayo Clinic to consult with doctors about his heart condition. Mr. Fakhro reported having at least one episode of palpitations and a few episodes of light-headedness. He also had reduced left ventricular function, and a history of rheumatic heart and coronary artery disease. His aortic valve had been replaced in 1974 and again in 1985. Dr. R. Scott Wright, a cardiologist, examined Mr. Fakhro and ordered a Holter monitor study to evaluate his possible arrhythmia and to determine if Mr. Fakhro was at risk for sudden cardiac death. After examining Mr. Fakhro, Dr. Wright concluded that Mr. Fakhro had non-ischemic cardiomyopathy, which is a weakening of the heart muscle not caused by a heart attack, with left ventricular dysfunction secondary to rheumatic aortic valve disease.

Dr. Wright referred Mr. Fakhro to Dr. Jahangir, an electrophysiologist.¹ Dr. Jahangir ordered an electrophysiolgy study (EP study). Based on the results of the EP study, Dr. Jahangir determined that Mr. Fakhro suffered from ventricular tachycardia, which is a fast heartbeat initiated within the ventricles, and that Mr. Fakhro was a candidate for an ICD. An ICD can be used to treat ventricular tachycardia because it detects the onset of an abnormal heart rhythm and, if necessary, delivers an internal shock to restore the heart's normal rhythm. Given Mr. Fakhro's medical history, Dr. Jahangir considered him a high-risk patient. Dr. Jahangir advised Mr. Fakhro of the risks associated with an EP study and with the implantation of an ICD. He testified that it was his practice in 1999 to tell patients with diseased hearts that the risk of death associated with an EP study and with the implantation of an ICD was 1 in 500. Mr. Fakhro decided he wanted to receive an ICD.

1 Electrophysiology is a subspecialty of cardiology that focuses on the evaluation and treatment of cardiac rhythms and disturbances in cardiac rhythm.

An ICD is a device implanted under the skin that is connected to the heart by wires that send electrical signals to and from the ICD. Immediately after an ICD is surgically placed under the skin and the wires are placed in the correct position in the heart, a patient is placed under general anesthesia, and the ICD is tested to determine if it can detect an abnormal heart beat and deliver a shock to restore the heart to a normal rhythm. To test an ICD, an electrophysiologist uses the ICD to introduce an abnormal rhythm in the patient's heart and waits to make sure that the ICD responds appropriately by delivering one or more internal shocks to restore the heart to a normal rhythm.

On February 23, 1999, Mr. Fakhro underwent surgery to implant an ICD. During the procedure, doctors used an electrocardiogram to monitor his heart activity. The Mayo Clinic did not keep the print out from the electrocardiogram. While the ICD was implanted, Mr. Fakhro was given conscious sedation, and then he was placed under general anesthesia to test the ICD. Dr. Hammill, an electrophysiologist, monitored him. A shock was delivered by the ICD to put Mr. Fakhro's heart into ventricular fibrillation. The ICD sensed the abnormal rhythm and delivered a first shock of 24 joules. Because the first shock did not restore Mr. Fakhro's heart to a normal rhythm, the ICD delivered a second shock of 35 joules. The second shock restored the heart to a normal rhythm. It took 25 seconds for Mr. Fakhro's heart to return to a normal rhythm.

Although his heart rhythm was restored, Mr. Fakhro's blood pressure did not recover. Specifically, he experienced electrical mechanical dissociation (EMD), which means that his heart was not able to pump blood effectively. Therefore, the doctors called a "Code Blue" and began efforts to resuscitate him. Doctors ordered various tests, including drawing arterial blood gases (ABG), to help determine the cause of the EMD. After approximately 45 minutes, Mr. Fakhro's blood pressure returned to a normal level. During that time, however, he sustained irreversible brain damage due to the lack of oxygen to his brain. Mr. Fakhro went into a coma and died on March 25, 1999. He was 43 years old.

On March 22, 2002, Mrs. Fakhro commenced this action, alleging medical malpractice. Pursuant to a Stipulation and Order dated December 30, 2002, the Mayo Clinic filed an amended answer and counterclaim for medical services rendered on January 8, 2003. To date, no affidavit of service has been filed for service of the amended answer and counterclaim, and Mrs. Fakhro has not filed her reply to the counterclaim.

II. DISCUSSION

A. Sanctions for Spoliation of Evidence

Mrs. Fakhro asserts that the Mayo Clinic should be sanctioned for destroying the electrocardiogram's "rhythm strips"² that were printed out during Mr. Fakhro's procedure.³ Mrs. Fakhro asks the Court to strike the Mayo Clinic's responsive pleadings and enter default judgment against it. In the alternative, she asks that the Court shift the burden of proof of negligence from Mrs. Fakhro to the Mayo Clinic and that the Court give an adverse inference instruction to the jury.

2 Mrs. Fakhro uses various terms to describe this piece of evidence, including heart monitoring strips, heart tracing strip, ECG rhythm strips, EKG strips, and computer driven heart data records.

3 Mrs. Fakhro also asserts that the Mayo Clinic should be sanctioned for not keeping "a flow sheet or log." During and following Mr. Fakhro's procedure, the Mayo Clinic created and maintained a surgical report, anesthesia report, and an ICD implementation report. After reviewing the record and the parties' arguments, the Court concludes that the difference between those records and a flow sheet or log is a matter of semantics. Accordingly, the Court finds Mrs. Fahkro's argument with respect to this issue unavailing.

The first issue to address with respect to spoliation of evidence and the appropriate sanction to apply is whether federal or state law should be used to analyze such a claim. The parties cite to both state and federal law in support of their arguments. Under the Erie doctrine, federal courts sitting in diversity apply state law to substantive matters and federal law to procedural matters. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). The sanctions sought by Mrs. Fakhro are procedural matters because they concern evidentiary matters. See, e.g., Stevenson v. Union Pac. R., 354 F.3d 739, 743 (8th Cir. 2004) (affirming district court's use of an adverse inference jury instruction because it was within the district court's inherent power to give the instruction); Lawrence v. Bowersox, 297 F.3d 727, 735 (8th Cir. 2002) (noting that trial court could have used its inherent power to strike responsive pleading and enter default judgment). Accordingly, federal law governs Mrs. Fakhro's motion.

Sanctions for spoliation of evidence may be imposed under a federal court's inherent powers. Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir. 1993). Before a sanction for destruction of the evidence is appropriate, there must also be a finding that the party knew or shown have known that the destroyed evidence was relevant to pending or potential litigation. Id. As this Court has explained, "sanctions are appropriate when a party (1) destroys (2) discoverable material (3) which the party knew or should have known (4) was relevant to pending, imminent, or reasonably foreseeable litigation." Lexis-Nexis v. Beer, 41 F. Supp.2d 950, 954 (D. Minn. 1999). In addition, before a sanction can be imposed, there must also be a finding that the destruction prejudiced the opposing party. Dillon, 986 F.2d at 267. If a district court determines that a sanction is appropriate, it is then within its discretion to determine the extent of such a sanction. Id. at 268.

Mrs. Fakhro relies on the testimony of M.J. Rasmussen, an electrophysiology nurse, to support her assertion that the Mayo Clinic should have retained the rhythm strips. A rhythm strip is a piece of paper that shows raw data about a patient's heart rhythm during a particular procedure. The paper used to produce the strips is thermal paper, which can discolor or become illegible over time. A typical ICD implantation produces approximately 20 feet of rhythm paper. Ms. Rasmussen testified that the strips are normally discarded after a procedure but that the Mayo Clinic "might keep" the strips if they did not look "normal." Thus, Mrs. Fakhro contends that the Mayo Clinic should have been on notice of a potential suit because the strips could not have been normal, given that Mr. Fakhro eventually died from a rare adverse result of the ICD implantation. She asserts that she has been prejudiced by the strips' destruction because the strips are "the one piece of evidence that can conclusively determine what went wrong" with Mr. Fakhro. According to her, the strips are the only objective data that can show how the heart was performing at every moment during the procedure.

In response, the Mayo Clinic states that the rhythm strips are not a key piece of evidence. The Mayo Clinic argues that it could not have known that this information was relevant to a pending or potential lawsuit because Mrs. Fakhro did not bring this action until three years after her husband's death. It explains that it destroyed the strips in its normal course of business because it is not practical for the Mayo Clinic to keep approximately 20 feet of paper for each ICD implantation it does and that the machine that produced the strips did not have any electronic storage capacity. Moreover, it notes that it did not keep the strips because they were considered "normal," given that Mr. Fakhro's heart rhythm was restored to a normal rate within 25 seconds. Finally, it argues that Mrs. Fakhro cannot show that she has been prejudiced because the pertinent information contained in those strips can be found in Dr. Hammih's notes taken during Mr. Fakhro's procedure.

Assuming for the purposes of this motion that the Mayo Clinic was on notice of a potential lawsuit, Mrs. Fakhro's motion nonetheless fails because she cannot show that she has been prejudiced. Dr. Hammill's notes taken contemporaneously with Mr. Fakhro's procedure show the pertinent information from the strips, namely that 25 seconds elapsed between the induction of the abnormal rhythm and the restoration of the normal rhythm. This information is supported by detailed information about the ICD procedure contained in the surgical report and anesthesia record. Mrs. Fakhro's expert, Dr. Virendra S. Mather, expressed his opinion — based on Dr. Hammill's notes — that the Mayo Clinic was negligent because it did not use alternative methods of counter shock within 15 seconds after Mr. Fakhro's heart was put into ventricular fibrillation The Mayo Clinic does not dispute that time period. Given that Mrs. Fakhro's expert was able to form an opinion based on the 25 seconds and because the pertinent information about the strips is available in Dr. Hammill's notes, the Court concludes that Mrs. Fakhro has suffered no prejudice. Cf. Stevenson, 354 F.3d at 748 (explaining that the plaintiff had been prejudiced because an audio tape was the only contemporaneous recording of the conversation); Dillon, 986 F.2d at 267-68 (noting ways in which plaintiff was prejudiced because photographs, which were blurry and not comprehensive, failed to document crucial areas of the vehicle). Accordingly, her motion for sanctions and/or default judgment is denied.

B. Medical Malpractice

The Mayo Clinic moves to dismiss with prejudice Mrs. Fahkro's medical malpractice claim because she has not complied with the statutory requirements of Minn. Stat. § 145.682. Minnesota law requires a plaintiff to file two separate affidavits in medical malpractice cases when expert testimony is needed to establish a prima facie case. Minn. Stat. § 145.682, subds. 2-4. Failure to comply with either affidavit requirement results, upon motion, in mandatory dismissal with prejudice of each cause of action as to which expert testimony is required to establish a prima facie case. Id., subd. 6;⁴ see also Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999).

4 Subdivision 6 was amended on May 22, 2002. See Act of May 22, 2002, ch. 403, § 1, 2002 Minn. Laws. Subdivision 6 now allows a plaintiff time to correct deficiencies in an affidavit of expert identification before mandatory dismissal. This amended section applies to causes of action commenced on or after May 22, 2002; therefore, it is not applicable to this case because Mrs. Fakhro filed her Complaint on March 22, 2002.

Pursuant to section 145.682, when a plaintiff serves a defendant with a summons and complaint, the complaint must be accompanied by an affidavit of the plaintiff's attorney stating that the facts of the case have been reviewed by the attorney with an expert who is of the opinion that the defendant "deviated from the applicable standard of care and by that action caused injury to the plaintiff." Minn. Stat. § 145.682, subd. 3. Mrs. Fakhro complied with this requirement because she filed the Complaint accompanied by an affidavit signed by her attorney, Philip Pfaffly. Within 180 days after commencement of the suit, a plaintiff must serve upon the defendant a second affidavit which:

must be signed by each expert listed in the affidavit and by the plaintiff's attorney and state the identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of malpractice or causation, 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., subd. 4. The second affidavit is sometimes called the affidavit of expert identification. Mrs. Fakhro submitted the Affidavit of Dr. Mather as her affidavit of expert identification. Dr. Mather's affidavit is the focus of the Mayo Clinic's motion to dismiss.

In his affidavit, Dr. Mather expresses three main opinions. He opines that the Mayo Clinic was negligent in (1) its record-keeping, (2) its failure to draw ABG within 20 minutes of Mr. Fakhro's hypotensive crisis, and (3) by failing to use alternative methods of counter shock within 15 seconds after Mr. Fakhro's heart was put into ventricular fibrillation. The Mayo Clinic contends that Dr. Mather's affidavit does not meet the statutory requirements of section 145.682 for his opinions about record keeping and the failure to timely draw ABG because those opinions do not adequately show causation. It also asserts that Dr. Mather's affidavit does not meet the statutory requirements of section 145.682 with respect to his opinion about the use of alternative methods of counter shock within 15 seconds because it does not show causation and because Dr. Mather is not qualified to offer such an opinion. 1. Causation

Since 1990, the Minnesota Supreme Court has discussed the requirements of section 145.682 in five cases. See Teffeteller v. Univ. of Minn., 654 N.W.2d 420 (Minn. 2002); Anderson v. Rangachary, 608 N.W.2d 843 (Minn. 2000); Lindberg, 599 N.W.2d at 578; Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552 (Minn. 1996); Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188 (Minn. 1990). The Minnesota Supreme Court explained that the affidavit of expert identification must (1) disclose specific details concerning the expert's expected testimony, including the applicable standard of care, (2) identify the acts or omissions that the plaintiff alleges violated the standard of care, and (3) include an outline of the chain of causation between the violation of the standard of care and the plaintiff's damages. Sorenson, 457 N.W.2d at 190. With respect to causation, an expert affidavit stating that the defendants "failed to properly evaluate" or "failed to properly diagnose" the patient does not satisfy section 145.682 because such statements contain empty conclusions that do not set out how the expert will use the facts in the hospital record to arrive at opinions of malpractice and causation. Id., 457 N.W.2d at 192-93. In Stroud, a case alleging malpractice based on the defendant's failure to timely diagnose and treat an injury, the court concluded that the expert affidavit provided only broad and conclusory statements as to causation because it failed to connect the decedent's cause of death to the defendant's alleged deky in properly diagnosing and treating the decedent. Stroud, 556 N.W.2d at 556. The Minnesota Supreme Court noted that the expert affidavit "should set out how the expert will use those facts to arrive at opinions of malpractice and causation." Id. at 555 (citations omitted). The expert affidavit in Stroud failed to comply with section 145.682 because it contained only conclusory statements based on facts found in the hospital or clinic record. Id. at 555-56.

With respect to his opinion that the Mayo Qinic was negligent in its record-keeping efforts, Dr. Mathur explains what he believes are appropriate record-keeping techniques. In doing so, however, he fails to explain how the Mayo Clinic's alleged negligence in record keeping caused any harm to Mr. Fakhro. Without more, Dr. Mathur's opinion with respect to the Mayo Clinic's record keeping does not detail the chain of causation required under section 145.682.

With respect to his opinion that the Mayo Clinic was negligent during its resuscitation efforts because it failed to draw ABG within 20 minutes of Mr. Fakhro's hypotensive crisis, Dr. Mathur describes what information ABG provide, but he does not explain how the alleged delay in drawing the ABG caused harm to Mr. Fahkro. Specifically, Dr. Mathur does not explain how the Mayo Clinic could have used such information, if it had drawn the ABG as Dr. Mathur describes, to change its treatment of Mr. Fakhro. Moreover, he fails to counter the Mayo Clinic's assertion that the ABG were drawn within 20 minutes but that the test results were received and recorded after 20 minutes into Mr. Fakhro's hypotensive crisis. Without more, Dr. Mathur's opinion as to the ABG contains only broad conclusions, and it falls short of detailing the chain of causation required under section 145.682.

With respect to his opinion that the Mayo Clinic was negligent in failing to use alternative methods of counter shock within 15 seconds after Mr. Fakhro's heart was put into ventricular fibrillation, Dr. Mathur explains what steps should have been taken within 15 seconds. He further explains how those steps should have been implemented and how Mr. Fakhro's condition would have been impacted if those alternative methods had been used. Finally, he explains how Mr. Fakhro's condition was impacted by the Mayo Clinic's failure to use the alternative methods within 15 seconds. Given this detailed analysis, the Court concludes that Dr. Mathur's opinion with respect to this issue describes in adequate detail the chain of causation required under section 145.682.

2. Qualification

The Mayo Clinic asserts that Dr. Mathur is not qualified to deliver an opinion that it was negligent in failing to use alternative methods of counter shock within 15 seconds after Mr. Fakhro's heart was put into ventricular fibrillation. According to the Mayo Clinic, although Dr. Mathur is a qualified cardiologist, he has no practical experience in ICD implantation, ICD testing, or electrophysiology. Therefore, it asserts that he is not qualified to render an opinion on the acceptable standard of care required in ICD implantation surgery and ICD testing. In response, Mrs. Fakhro asserts that Dr. Mathur, as a cardiologist for over 25 years, has more than sufficient experience, background, and qualifications to deliver such an opinion. She points out that, although Dr. Mathur does not implant ICDs, he is "intimately involved when one of his patients receives an ICD" because he "consults extensively" with other doctors to determine the appropriate care needed for his patients. Further, she points out that Dr. Mathur has written 24 articles "related to" electrophysiology.

Section 145.682 requires that a plaintiff submit an affidavit by an expert "whose qualifications provide a reasonable expectation that the expert's opinions could be admissible at trial." Minn. Stat. § 145.682, subd. 3(a); Teffeteller, 645 N.W.2d at 427 (concluding that the requirements of subd. 3(a) apply to the affidavit of expert identification). In Teffeteller, the Minnesota Supreme Court concluded that the expert was not qualified or competent to give an expert opinion at trial. Teffeteller, 645 N.W.2d at 427. In that case, a 14-year-old bone marrow transplant patient suffered morphine toxicity and died. Id. at 423-24. The plaintiff's expert had impressive credentials in pediatrics and pediatric care. Id. at 426-27. However, he did not have any specific experience with bone marrow transplants or pediatric oncology. Id. For this reason, the Minnesota Supreme Court affirmed the district court's dismissal of the case because the expert did not meet the statutory requirements of section 145.682. Id. at 428.

In Walberg v. Department of Veterans Affairs, 2002 WL 31060378 (D. Minn. Sept. 12, 2002), this Court reached a similar conclusion. In that case, a patient died as a result of complications from conjunctival melanoma, or cancer of the eye. Walberg, 2002 WL 31060378, at * 1. This Court dismissed the case because, although the plaintiff's expert was a qualified oncologist, he had no experience with cancers of the eye. Id. at * 2. In Mattke v. Deschamps, 2003 WL 1883344 (D. Minn. Apr. 14, 2003), this Court determined that the plaintiff's expert was qualified under the requirements of section 145.682. In that case, a patient sued the Mayo Clinic claiming that it was negligent in removing a healthy portion of the patient's lung. Mattke, 2003 WL 1883344, at *1. The plaintiff's expert had completed a fellowship in pulmonary and critical care, was board certified, and had extensive practical experience with the subject matter at hand. Id. at * 5. Given these factors, this Court concluded that the plaintiff's expert met the statutory qualification requirements under section 145.682. Id.

Dr. Mathur has impressive credentials in the field of interventional cardiology. He has been practicing cardiology for over 25 years; he is on staff at St. Luke's Episcopal Hospital, which is affiliated with the renowned Texas Heart Institute; and he is an associate professor of medicine at Baylor College of Medicine. However, he is not experienced with the implantation of ICDs or their testing. He is not board certified in electrophysiology. Moreover, he does not regularly practice in the area of evaluation and treatment of cardiac rhythms. Instead, he refers his patients to an electrophysiologist when they need such evaluation because, as Dr. Mathur explains, electrophysiologists "super specialize" in the field of cardiac rhythms.

Dr. Mathur treated Mr. Fakhro in 1994. However, his treatment of Mr. Fakhro's general heart condition does not necessarily qualify him to testify about matters concerning Mr. Fakhro's ICD implantation. Dr. Mathur does have some general knowledge of the field of electrophysiology, but this subspecialty of cardiology, which includes the use of ICDs, has changed dramatically in the last 20 years. Dr. Mathur's last article about electrophysiology was published in 1981. Dr. Mathur may be qualified to testify about the procedures needed to resuscitate a patient in other situations, but it does not necessarily follow that he is qualified to testify about the procedures needed to resuscitate a patient during a highly technical ICD testing. Indeed, in this setting, the Mayo Clinic points out that certain testing conditions must be present, including the introduction of an abnormal rhythm and the allowance of sufficient time for the ICD to charge and respond, to make sure that the ICD works properly.

The Court reads Minnesota Supreme Court precedent as requiring that an expert, for the purposes of section 145.682, have experience with the particular procedure or area of care under dispute before that expert can deliver an affidavit of expert identification with respect to an alleged negligent act. While an expert need not be exquisitely qualified in a particular area, he or she must be sufficiently familiar with the same or similar procedure at issue so that he or she can render an opinion as to whether it was negligently performed. See Teffeteller, 645 N.W.2d at 426. Dr. Mathur, having never implanted or assisted in the implantation or testing of an ICD, is not qualified to render an opinion concerning the applicable standard of care required during the implantation and testing of an ICD. Indeed, Dr. Mathur's opinion about the 15 seconds is not particularized to an ICD situation, and his opinion does not recognize the situational factors present during an ICD testing. Given this, Dr. Mathur's qualifications are more akin to the expert's qualifications in Walberg than to the expert's qualifications in Mattke. Therefore, the Court concludes that Dr. Mathur is not qualified, as required by section 145.682, to render an opinion about the Mayo Clinic's failure to use alternative methods of counter shock within 15 seconds after Mr. Fakhro's heart was put into ventricular fibrillation during the ICD testing. Because Dr. Mathur's affidavit does not meet the requirements of the affidavit of expert identification with respect to causation and/or qualification, the Court grants the Mayo Clinic's motion to dismiss. See Minn. Stat. § 145.682, subd. 6.

3. Constitutionality

Finally, Mrs. Fakhro argues that section 145.682 is unconstitutional. She contends that the statutory method proscribed for screening meritorious medical malpractice ckims violates the separation of powers because it is a clear reversal of the notice pleading court rules and procedures. Mrs. Fakhro takes her argument from the dissent in Anderson. See Anderson, 608 N.W.2d at 852 (Gilbert, J., dissenting). The Minnesota Supreme Court, the Minnesota Court of Appeals and this Court have previously determined that the application of section 145.682 to medical malpractice claims is constitutional. See, e.g., Anderson, 608 N.W.2d at 850; Henke v. Dunham, 450 N.W.2d 595, 598 (Minn.Ct.App. 1990); Gall v. Mayo Clinic, 2001 WL 267490 at *4 (Minn.Ct.App. Mar. 20, 2001); Medina v. EMSA Correctional Care, Inc., 2002 WL 1488773 (D. Minn. July 10, 2002); Chizmadia v. Smiley's Point Clinic, 768 F. Supp. 266, 271 (D. Minn. 1991). Accordingly, Mrs. Fakhro's constitutional challenge fails.

III. CONCLUSION

Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:

1. Mrs. Fakhro's motion for sanctions and/or default judgment [Docket No. 16] is DENIED.

2. Mayo Clinic's motion to dismiss under Minn. Stat. § 145.682 [Docket No. 20] is GRANTED.

3. Mrs. Fakhro's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.

4. The parties shall contact the Court in writing within 30 days from the date of this Order to inform it as to the status of the Mayo Clinic's Counterclaim.