Bjorke v. Mayo Clinic of Rochester

574 N.W.2d 447, 1998 Minn. App. LEXIS 132, 1998 WL 49381
CourtCourt of Appeals of Minnesota
DecidedFebruary 10, 1998
DocketC8-97-1020
StatusPublished

This text of 574 N.W.2d 447 (Bjorke v. Mayo Clinic of Rochester) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bjorke v. Mayo Clinic of Rochester, 574 N.W.2d 447, 1998 Minn. App. LEXIS 132, 1998 WL 49381 (Mich. Ct. App. 1998).

Opinion

OPINION

LANSING, Judge.

The district court dismissed this medical malpractice case with prejudice under Minn. Stat. § 145.682, subd. 6 (1996), for plaintiffs failure to provide a legally sufficient affidavit of expert identification. The plaintiff appeals the dismissal, arguing that the mandatory dismissal provisions do not apply when a plaintiff fails to provide only one of the two required affidavits and that his answers to interrogatories qualify as a legally sufficient expert identification affidavit.

FACTS

Jonathan Bjorke was treated at St. Mary’s Hospital in Rochester, Minnesota, for injuries sustained in a motorcycle accident. Bjorke claimed that he developed a serious staph infection because the hospital, Mayo Clinic, or Mayo Clinic’s staff (collectively “the clinic”) left an intravenous line in his arm too *449 long, resulting in permanent damage to his shoulder. Bjorke sued the clinic in late August 1996. Although the two-year statute of limitations had expired by the time the last defendant was served on September 6, 1996, the clinic used this date to determine compliance with the 180-day expert disclosure requirement of Minn.Stat. § 145.682 (1996) and did not raise the limitations bar.

Bjorke served the initial affidavit of expert review along with the summons and complaint, as required under Minn.Stat. § 145.682, subds. 2 and 3. On September 12, 1996, the clinic served interrogatories requesting information about the opinions of Bjorke’s expert. After receiving Bjorke’s responses on October 28, 1996, the clinic contacted his attorney to challenge the sufficiency of his answers. Bjorke’s counsel agreed to provide more detailed answers by November 15,1996. After sending three copies of a confirmation letter to Bjorke’s attorney, the clinic received unsigned, amended answers via facsimile on January 6, 1997. On January 13,1997, the clinic’s counsel sent another letter to Bjorke’s counsel outlining deficiencies in the amended responses. The clinic sent a second copy of this letter via certified mail on February 3,1997.

The deadline for providing a legally sufficient expert identification affidavit was March 5,1997. On March 14,1997, the clinic moved to dismiss Bjorke’s claims for failure to comply with Minn.Stat. § 145.682. At the motion hearing, Bjorke’s counsel argued that: (1) dismissal under the statute was not appropriate because, at worst, Bjorke failed to provide only one of the required disclosures, not both; (2) his amended interrogatory responses met the disclosure requirements of Minn.Stat. § 145.682; and (3) any defects in the execution of the amended affidavits were due to “excusable neglect.” Ruling from the bench, the district court granted the clinic’s motion to dismiss Bjorke’s claims for failure to provide the required expert . disclosures.

ISSUES

I. Does plaintiffs failure to provide either an expert review affidavit or an expert identification affidavit result in mandatory dismissal with prejudice under Minn.Stat. § 145.682, subd. 6?

II. Did the trial court abuse its discretion in ruling that Bjorke failed to provide a legally sufficient expert identification affidavit as required by Minn. Stat. § 145.682, subds. 2 and 4?

ANALYSIS

I

Statutory construction “is a question of law and subject to de novo review on appeal.” Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990) (citing Doe v. State Bd. of Med. Examiners, 435 N.W.2d 45, 48 (Minn.1989)). When a statute is unambiguous, the court must give effect to the plain meaning of the statute. Lombardo v. Seydow-Weber, 529 N.W.2d 702, 703 (Minn.App.1995) (citing Feick v. State Farm Mut. Auto. Ins. Co., 307 N.W.2d 772, 775 (Minn.1981)). If the statute’s text is ambiguous, the reviewing court must ascertain the legislature’s intent. Minn.Stat. § 645.16 (1996).

Under Minn.Stat. § 145.682 (1996), plaintiffs’ attorneys must provide two affidavits in medical malpractice actions requiring expert testimony. The first, the affidavit of expert review, must be served with the summons and complaint. Minn.Stat. § 145.682 subd. 2(1). The second, the expert identification affidavit, must be served within 180 days thereafter. Minn.Stat. § 145.682, subd. 2(2). Failure to comply with section 145.682 results in mandatory dismissal with prejudice unless the plaintiff can prove excusable neglect. Minn.Stat. § 145.682, subd. 6.

Bjorke takes the position that dismissal is mandatory only when the plaintiff fails to provide both required affidavits. Bjorke bases this argument on an imprecise reading of the statute, a reading that would require us to ignore the plain text of section 145.682.

Subdivision 2 states that plaintiffs must provide two required affidavits — the affidavit of expert review (the “clause 1” affidavit) and the expert identification affidavit (the “clause 2” affidavit). Id.; subd. 2. The requirements for the affidavit of expert re *450 view appear in subdivision 3, while subdivision 4 outlines the requirements for the expert identification affidavit. Id., subds. 3, 4. In two separate paragraphs, subdivision 6 outlines the penalty for failing to provide these affidavits. Id., subd. 6. The first paragraph states that failure to provide the “clause 1” affidavit results in mandatory dismissal with prejudice. Id. Similarly, the second paragraph states that failure to provide the “clause 2” affidavit and failure to include the specific information set forth in subdivision 4 results in mandatory dismissal,with prejudice:

Failure to comply with subdivision 2, clause (1), within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case.
Failure to comply with subdivision 2, clause (2), and subdivision 4 results, upon motion, in mandatory dismissal with preju- . dice of each cause of action as to which expert testimony is necessary to establish a prima facie case.

MinmStat. § 145.682, subd. 6 (1996). We reject Bjorke’s argument that the mandatory dismissal provisions apply only when a plaintiff fails to supply both affidavits. A plaintiffs failure to provide either the affidavit of expert review (“clause 1”) affidavit or the expert identification (“clause 2”) affidavit requires mandatory dismissal with prejudice.

II

A district court’s ruling on whether a plaintiff failed to comply with the mandatory disclosure requirements of Minn.Stat. § 145.682 is reviewed under an abuse of discretion standard. Sorenson, 457 N.W.2d at 190 (citing Dennie v.

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Related

Sorenson v. St. Paul Ramsey Medical Center
457 N.W.2d 188 (Supreme Court of Minnesota, 1990)
Lombardo v. Seydow-Weber
529 N.W.2d 702 (Court of Appeals of Minnesota, 1995)
Stroud v. Hennepin County Medical Center
556 N.W.2d 552 (Supreme Court of Minnesota, 1996)
Doe v. Minnesota State Board of Medical Examiners
435 N.W.2d 45 (Supreme Court of Minnesota, 1989)
Feick Ex Rel. Feick v. State Farm Mutual Automobile Insurance Co.
307 N.W.2d 772 (Supreme Court of Minnesota, 1981)
Dennie v. Metropolitan Medical Center
387 N.W.2d 401 (Supreme Court of Minnesota, 1986)

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Bluebook (online)
574 N.W.2d 447, 1998 Minn. App. LEXIS 132, 1998 WL 49381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bjorke-v-mayo-clinic-of-rochester-minnctapp-1998.