This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Cindy Zahn-Amsler, as Trustee on behalf

of the heirs of Deceased Dorothy A. Zahn,





Minnesota Thoracic Associates, P.A., et al.,



Allina Health Systems d/b/a Mercy Hospital,




Filed July 25, 2000


Halbrooks, Judge


Hennepin County District Court

File No. WD 99-3975



Jesse Gant, III, Gant Law Firm, P.A., 670 North Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)


Rebecca Egge Moos, Shalanda D. Ballard, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South 6th Street, Minneapolis, MN 55402 (for respondents MN Thoracic Associates, et al.)


Bradley J. Betlach, Halleland Lewis Nilan Sipkins & Johnson, 600 Pillsbury Center South, 220 South 6th Street, Minneapolis, MN 55402-4501 (for respondent Allina Health Systems d/b/a Mercy Hospital)


            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Cindy Zahn-Amsler, as Trustee on behalf of the heirs of Dorothy A. Zahn, challenges the district court’s dismissal of her medical-malpractice lawsuit for failure to comply with the expert-affidavit requirements of Minn. Stat. § 145.682 (1998).  We affirm.


            On May 11, 1998, Dorothy Zahn underwent coronary artery bypass surgery and bilateral carotid endarterectomies.  Respondent Gregg Anderson, M.D., participated in these procedures.  Zahn was discharged from the hospital on May 18, 1998.  On May 26, 1998, home care nurses removed the staples from Zahn’s sternal incision.  In so doing, they noticed a small opening at the lower end of the incision.  On May 29, 1998, Zahn was examined by respondent, nurse Paul Aubart, who cleaned the wound, prescribed an antibiotic, and provided instruction on dressing the wound.

            On June 5, 1998, Dr. Anderson examined and debrided Zahn’s wound at his office.  She was to return in a couple weeks.  But the condition of Zahn’s wound worsened, requiring that she be taken to the Mercy Hospital emergency room for treatment on June 14, 1998.  Zahn was subsequently admitted to Mercy Hospital on June 22, 1998, for surgical procedures to drain or remove sternal bone osteomyelitis, necrotic soft-tissue and mediastinal pockets of infection.  Zahn remained hospitalized at Mercy until she was transferred to North Memorial Medical Center on August 6, 1998.  Despite aggressive efforts made to treat the serious infection that had developed, Zahn died on September 1, 1998.  The autopsy report noted that Zahn also had a right subdiaphragmatic abscess.

            On or about March 24, 1999, appellant Cindy Zahn-Amsler served respondents with a complaint, attorney Jesse Gant’s affidavit of expert review, and a notarized letter from Michael Bergman, M.D.  Dr. Bergman’s letter did not articulate the applicable standard of care or state how respondents had deviated from the standard of care.  Appellant never provided a second expert affidavit or expert interrogatory responses setting forth the basis for her claims against respondents, instead relying on Dr. Bergman’s letter. 

            Appellant served several discovery requests on respondents, including requests for medical records.  Zahn’s medical records are voluminous.  Respondent Minnesota Thoracic Associates provided appellant with copies of its own records and offered to supply copies of records from other facilities in its possession if appellant paid the cost of copying those records.  Respondent Allina Health Systems responded that copies of Zahn’s hospital records could be obtained by providing signed releases to the individual facilities where Zahn received treatment.  Alternatively, respondent Allina Health Systems stated that it would work with appellant’s counsel to make copies of records in its possession, if contacted.  Appellant’s counsel did not follow up with either respondent in response to the offers to provide additional medical records.

            On July 19, 1999, appellant filed a motion to compel discovery, seeking supplemental answers to interrogatories, additional documents, and sanctions.  Following a hearing on August 31, 1999, the district court denied appellant’s request for certain medical records.  The court based its decision on the fact that the records requested were readily available to appellant.

            Following expiration of the 180-day deadline for submission of an expert affidavit or interrogatory responses containing a detailed explanation of plaintiff’s expert’s opinions, respondents moved the district court for dismissal of appellant’s claims pursuant to Minn. Stat. § 145.682 (1998).  Appellant responded with a motion for sanctions dated December 7, 1999.  The matter was heard by the district court on December 22, 1999.  In an order dated January 12, 2000, the district court granted respondents’ motions, dismissed appellant’s claims with prejudice, and denied appellant’s motion for sanctions.  This appeal follows. 


            The issue on appeal is whether the district court abused its discretion in dismissing appellant’s lawsuit for failure to comply with the expert affidavit requirements of Minn. Stat. § 145.682 (1998).  This court will not reverse a trial court’s dismissal of an action for procedural irregularities absent a showing that the trial court abused its discretion.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

            Minn. Stat. § 145.682 requires that a plaintiff provide two affidavits with regard to a medical malpractice claim.  The first affidavit is not at issue here.  The second affidavit must identify each person the plaintiff expects to call as an expert witness at trial to testify concerning 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.  See Minn. Stat. § 145.682, subd. 4.  Failure to comply with the statutory requirements will result in mandatory dismissal with prejudice of each cause of action on which expert testimony is necessary to establish a prima facie case.  See Minn. Stat. § 145.682, subd. 6. 

The supreme court in Anderson v. Rengachary, 608 N.W.2d 843 (Minn. 2000), reaffirmed and synthesized its earlier holdings in Lindberg v. Health Partners, Inc., 599 N.W.2d 572 (Minn. 1999); Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552 (Minn. 1996); and Sorenson, 457 N.W.2d 188.  Prior to Sorenson, the supreme court had not addressed the issue of the substantive disclosure requirements of Minn. Stat. § 145.682.  Sorenson, 457 N.W.2d at 190-91. 

In Sorenson, the supreme court provided its interpretation of Minn. Stat. § 145.682, subd. 4.  Anderson, 608 N.W.2d at 847.

In future cases, plaintiffs will be expected to set forth, by affidavit or answers to interrogatories, specific details concerning their experts’ expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.


In deciding whether a procedural dismissal should be granted, the trial court should carefully evaluate the degree of prejudice to the defendant caused by the inadequate disclosures.  In borderline cases where counsel for a plaintiff identifies the experts who will testify and give some meaningful disclosure of what the testimony will be, there may be less drastic alternatives to a procedural dismissal. 


Sorenson, 457 N.W.2d at 193 (citation omitted) (emphasis added).

[T]o satisfy the requirements of the second affidavit, it is not enough simply to repeat the facts in the hospital or clinic record.  The affidavit should set out how the expert will use those facts to arrive at opinions of malpractice and causation.


Id. at 192. 

In Stroud, the district court’s dismissal of a medical malpractice cause of action on the basis of an inadequate expert affidavit was affirmed by the supreme court because the required affidavit did not “provide an outline of the chain of causation between the alleged violation of the standard of care and the claimed damages.”  556 N.W.2d at 556. 

            In Lindberg, the supreme court concluded that “broad and conclusory statements as to causation” do not satisfy the requirements of Minn. Stat. § 145.682.  599 N.W.2d at 578.  Lindberg went on to explain the extent of disclosure required: 

The statute requires far more information than simply identification of the expert intended to be called at trial or a “general disclosure” as respondent argues, and non-affidavit materials, absence of prejudice to defendant, failure of defendant to prove plaintiff’s claim is frivolous or failure of defendant to alert plaintiff to the inadequacy of the affidavit of expert identification will not excuse or justify an affidavit of expert identification falling short of the substantive disclosure requirement.  The statute provides for no such exception and it is not for the courts to read into a clear statutory scheme something that plainly is not there.


Id.  In the instant case, appellant argued that he was not adequately put on notice of the deficiencies of Dr. Bergman’s letter.  But as indicated by the Lindberg court, lack of notice is not an exception to the statutory requirements. 

            In its analysis, the district court broke down the requirements for the second affidavit into three elements:  (1) that the affidavit explicitly delineate the applicable standards of care; (2) that it explain how defendants, through their acts and omissions, breached those standards of care; and (3) that the affidavit set out a detailed chain of causation showing how defendant’s negligent acts or omissions caused plaintiff’s injuries.  The district court concluded that appellant’s affidavit failed on all three elements. 

Considering the requirements set forth in Sorenson, Stroud, Lindberg, and Anderson, and after careful review of the affidavit in question, we conclude that the district court’s determination was not an abuse of discretion.  The affidavit fails to clearly articulate the applicable standards of care.  In addition, there is virtually no language identifying specific departures from applicable standards of care or constructing a chain of causation.  Finally, Dr. Bergman repeatedly noted instances where he had incomplete information, and, therefore, reserved comment on whether a deviation occurred.  Yet no subsequent signed opinions were ever produced to support appellant’s claims. 

The affidavit consists of broad, conclusory statements that do not establish a chain of causation.  To that extent, the affidavit is similar to the one held insufficient by the Anderson court.  The district court properly dismissed the instant case because appellant failed to meet the requirements for an expert affidavit as set out in Minn. Stat. § 145.682, subd. 4.