Sorenson v. St. Paul Ramsey Medical Center

• Decision Date: 15 June 1990
• Docket Number: No. CX-89-504,CX-89-504
• Citation: 457 N.W.2d 188
• Parties: Therese SORENSON and the Heirs and Next of Kin of John Sorenson by their trustee, Kevin Sorenson, Respondents, v. ST. PAUL RAMSEY MEDICAL CENTER, et al., Petitioners, Rebecca Brick, Certified Nurse Midwife, possibly known as B. Birch, Petitioner, Dr. Gordon M. Ditmanson, et al., Petitioners, Appellants, Dr. John Doe, et al., Defendants.
• Court: Minnesota Supreme Court

Page 188

457 N.W.2d 188

Therese SORENSON and the Heirs and Next of Kin of John

Sorenson by their trustee, Kevin Sorenson, Respondents, v. ST. PAUL RAMSEY MEDICAL CENTER, et al., Petitioners, Rebecca

Brick, Certified Nurse Midwife, possibly known as

B. Birch, Petitioner, Dr. Gordon M.

Ditmanson, et al.,

Petitioners,

Appellants,

Dr. John Doe, et al., Defendants.

No. CX-89-504.

Supreme Court of Minnesota.

June 15, 1990.

Rehearing Denied July 17, 1990.

Syllabus by the Court

1. In light of the importance of disposing of cases on their merits and the unique facts of this case, the affidavits and answers to interrogatories in question satisfy the disclosure requirements of Minn.Stat. Sec. 145.682 (1988).

2. In future cases, plaintiffs will be expected to set forth specific details concerning their expert's expected testimony in order to satisfy the disclosure requirements of Minn.Stat. Sec. 145.682 (1988).

Clarance E. Hagglund, Britton D. Weimer, Hagglund Law Firm, P.A., Minneapolis, for Rebecca Brick, et al.

Michael F. Barg, Geraghty, O'Loughlin & Kenney, P.A., St. Paul, for Dr. Ditmanson, et al.

Pat J. Skoglund, Thomas M. Countryman, Jardine, Logan & O'Brien, St. Paul, for St. Paul Ramsey Medical Center, et al.

William E. Jepsen, Karon, Jepsen & Daly, P.A., St. Paul, for respondent.

Heard, considered and decided by the court en banc.

YETKA, Justice.

Respondents brought a medical negligence action in connection with the stillbirth of John Sorenson on September 7, 1984. The trial court granted the defendant's "summary judgment" ¹ motion on the grounds that plaintiffs had failed to set out, with the degree of specificity required by Minn.Stat. Sec. 145.682, subd. 4 (1988), the proposed testimony of their expert witness. The court of appeals reversed, and the defendants appealed to this court. We affirm the court of appeals.

Plaintiff, Mrs. Sorenson, became aware that she had a possible claim for medical negligence in 1986 following a conversation with her gynecologist. Mrs. Sorenson's counsel undertook to represent her in August of 1986, approximately 1 month before the applicable statute of limitations was to expire. ² Plaintiffs' counsel commenced the action against various named and unnamed defendants in September of 1986. Attached to the summons and complaint served on defendants, Dr. Ditmanson, Dr. Koszalka and St. Paul Ramsey Medical Center, was an affidavit of plaintiffs' counsel indicating that he was unable to obtain expert review prior to the expiration of the statute of limitations and explaining that he believed that he could obtain the required affidavit. This affidavit satisfied the initial requirement of Minn.Stat. Sec. 145.682, subd. (3)(b).

In November 1986, counsel for defendants, Drs. Ditmanson and Koszalka, served their answer to the complaint with interrogatories requesting, inter alia, a "specific and detailed description of all facts upon which you base your allegation [of medical negligence]." In December 1986, plaintiffs' attorney served a second affidavit on Drs. Ditmanson and Koszalka. This second affidavit identified Dr. Peter Watson of Portland, Oregon, as a board certified specialist in obstetrics and gynecology and the person who would testify as plaintiffs' expert. This second affidavit was served within the time limit required by Minn.Stat. Sec. 145.682.

On February 6, 1987, counsel for Drs. Ditmanson and Koszalka moved the trial court for an order compelling plaintiffs to answer defendants' interrogatories and produce the documents requested therein. On February 6, 1987, plaintiffs' counsel provided defendants with a supplemental affidavit providing more detail as to the substance of Dr. Watson's expert testimony. Following plaintiffs' service on February 23, 1987, of answers to the interrogatories of St. Paul Ramsey Medical Center and its resident obstetrician, Drs. Ditmanson and Koszalka withdrew their pending motion to compel discovery and waited out the 180 days before moving for "summary judgment."

The issue in this case is whether Minn.Stat. Sec. 145.682 (1988) is satisfied by a minimal outline of the facts and opinions and a general summary of the grounds for the opinions to which the respondents' expert is expected to testify.

A trial court's dismissal of an action for procedural irregularities will be reversed on appeal only if it is shown that the trial court abused its discretion. Dennie v. Metropolitan Medical Center, 387 N.W.2d 401, 404 (Minn.1986). Statutory construction, however, is a question of law and subject to de novo review on appeal. Doe v. Minnesota State Bd. of Medical Examiners, 435 N.W.2d 45, 48 (Minn.1989).

The statute in question, Minn.Stat. Sec. 145.682, was passed in 1986 as part of an overall attempt at tort reform in Minnesota. See Act of Mar. 25, 1986, ch. 455, Sec. 60, 1986 Minn.Laws 840, 871-72. This court has not previously addressed the issue of the substantive disclosure requirements of section 145.682. Section 145.682 basically requires the plaintiff's attorney to provide two affidavits disclosing information in connection with expert testimony regarding the alleged medical negligence. See Minn.Stat. Sec. 145.682, subd. 2. The first affidavit need not identify the expert or provide the details of the expert's opinion. See Minn.Stat. Sec. 145.682, subd. 2(1). The second affidavit, however, must identify the expert and disclose something about the substance of the facts and opinions regarding the alleged negligence and a summary of the grounds for each opinion. See Minn.Stat. Sec. 145.682 subd. 2(2).

This case concerns the second affidavit. Although plaintiffs' attorney provided some disclosure within the applicable time frame, defendants contend that plaintiffs' second affidavit did not provide sufficient detail to satisfy the substantive disclosure requirements of Minn.Stat. Sec. 145.682, subd. 4. Section 145.682, subdivision 4 ³ contains three basic disclosure requirements- : the identity of the expert, the substance of the facts and opinion about which the expert will testify, and a summary of the grounds for each opinion. It is undisputed that plaintiffs' attorney adequately identified the expert. Consequently, the issue in this case is whether the affidavits and answers to interrogatories in question contained sufficient details concerning "the substance of the facts and opinions" and a sufficiently precise "summary" of the grounds for each opinion.

The pertinent legislative history is of little help in determining the legislative intent other than to indicate that the legislature contemplated procedural reform directed at the elimination of "frivolous" cases. In order to prove medical negligence, a plaintiff usually must offer expert testimony with respect to the standard of care and establish that the defendant doctor departed from that standard. E.g. Silver v. Redleaf, 292 Minn. 463, 465, 194 N.W.2d 271, 272 (1972). There are, however, exceptional cases in which expert testimony is not necessary. In these rare cases, if plaintiff raises the issue, the trial court should make a finding that expert testimony is not necessary and, therefore, the statute is inapplicable. See Chizmadia v. Smiley's Point Clinic, 873 F.2d 1163 (8th Cir.1989) (remanding action for determination of whether expert testimony was necessary).

In this case, it is obvious that expert testimony is required, and plaintiffs made no claim to the contrary. Consequently, there is no need for a finding by the trial court here. It follows that, ordinarily, a malpractice action without supporting expert testimony is frivolous per se. The procedural dismissal mandated by section 145.682, subdivision 6 seems, therefore, to have been designed to deal only with cases completely unsupported by expert testimony. Accordingly, the most important disclosure of the affidavit required by section 145.682, subdivision 4 (the second affidavit) is the identity of an expert who is willing to testify as to the alleged negligence. ⁴

Drs. Ditmanson and Koszalka argue that the substantive disclosure requirements of Minn.Stat. Sec. 145.682, subd. 4 are identical to Minn.R.Civ.P. 26.02. This is a compelling argument because the pertinent language of Rule 26.02(d)(1)(A) is identical to the disclosure requirement language in Minn.Stat. Sec. 145.682, subd. 4. Minn.R.Civ.P. 26.02(d)(1)(A) states:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (B) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to Rule 26.02(d)(3), concerning fees and expenses, as the court may deem appropriate.

(Emphasis added.) In commenting on Rule 26.02(d), Professors Herr and Haydock state: "Rule 26 * * * fails to provide standards regarding the sufficiency of interrogatory answers and neglects to provide courts with any guidance to decide when additional discovery should be permitted." 2 D. Herr & R. Haydock, Minnesota Practice, Sec. 26.19 at 27 (2d ed. 1985) (emphasis added).

In summary, Drs. Ditmanson and Koszalka argue that Rule 26.02(d) requires a "detailed disclosure," that Minn.Stat. Sec. 145.682 uses the same language, and that, therefore, Minn.Stat. Sec. 145.682 requires a detailed disclosure. This reasoning is flawed because there is no authority for the proposition that Rule 26.02(d) actually requires a "detailed disclosure." The "substance" and "summary" language of both the rule and the statute suggest a more general disclosure requirement.

The case of Dennie v. Metropolitan Medical Center, 387 N.W.2d 401 (Minn.1986) although decided before section 145.682 was effective, is somewhat...