This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1805

 

Renee Gall, et al.,

Appellants,

 

vs.

 

Mayo Clinic,

Respondent.

 

Filed March 20, 2001

Affirmed

Harten, Judge

 

Olmsted County District Court

File No. C0-00-185

 

Kevin S. Carpenter, Carpenter Law Offices, 204 Midsota Center, 3701-12th Street North, St. Cloud, MN 56303 (for appellants)

 

Ann E. Decker, Legal Department, Mayo Foundation, 200 First Street SW, Rochester, MN 55905; and

 

Paul B. Klaas, Mark J. Chasteen, Dorsey & Whitney, LLP, Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.


U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellants challenge the dismissal of their medical malpractice action for failure to comply with the expert affidavit requirements of Minn. Stat. § 145.682 (2000), the denial of their motions for an extension of time to comply, and the rejection of their claim that Minn. Stat. § 145.682 is unconstitutional.  Because we see no abuse of discretion and no error of law, we affirm.

FACTS

           

            Respondent Mayo Clinic surgically removed a lung from appellant Renee Gall as a result of an erroneous pathology report.  It is undisputed that the removal was unnecessary.  Appellant and her husband, appellant Dennis Gall, served a complaint on respondent alleging medical malpractice.  The complaint was accompanied by an affidavit from counsel stating that the expert review affidavit required by Minn. Stat. § 145.682, subd. 3(b) (2000), could not be obtained before the action was commenced. Respondent served an answer in which it demanded appellants’ compliance with pertinent parts of section 145.682.  Appellants have never served an affidavit of expert review.

            But appellants did serve respondent with the disclosure of opinions of an expert they planned to call as a witness, Louis P. Dehner, M.D., a pathology expert.  The disclosure stated that Dehner was

expected to testify that the pathologist at the Mayo Clinic who interpreted Renee Gall’s tumor as a carcinoid tumor fell below the standard of pathology practice with this diagnosis when in fact the tumor in the lung was a non-Hodgkin’s lymphoma, small follicular center type with a B-cell immunopheno-type.

 

The disclosure also described Renee Gall’s treatment and explained that Dr. Dehner had reviewed 15 histologic sections of her lung but could not review the frozen sections observed by the Mayo Clinic pathologists because they were not available.  The final opinion section of the disclosure reiterated the description of Dr. Dehner’s expected testimony:

Dr. Dehner believes the Mayo Clinic pathologists who initially interpreted Mrs. Gall’s tumor as a carcinoid tumor fell below the standard of pathology practice with this diagnosis because the tumor in the lung was actually a non-Hodgkin’s lymphoma and therefore the lung did not need to be removed.

           

            Respondent moved to dismiss, alleging that appellants failed to comply with the statute both in failing to serve an affidavit of expert review and because their expert witness disclosure did not meet the statutory requirements.  Appellants moved for additional time to comply or for a declaration that section 145.682 procedural requirements on expert review and disclosure are unconstitutional.  The district court denied appellants’ motions and dismissed their action.  This appeal followed.

D E C I S I O N

1.         Dismissal of Complaint

 

            A district court’s dismissal of a complaint for procedural irregularities, such as failure to comply with a statute, will be reversed only if the district court abused its discretion.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).  The district court concluded that appellants failed to comply with Minn. Stat. § 145.682 in three respects.

Section 145.682, subdivision 2, requires an affidavit of expert review to accompany a medical malpractice complaint.  Section 145.682, subdivision 3(a), delineates what information the affidavit of expert review must contain.  Section 145.682, subdivision 3(b), provides that, when expert review cannot be obtained before the action is commenced, an affidavit of expert review conforming to the requirements of section 145.682, subdivision 3(a), must be served on a defendant or defendant’s counsel within 90 days of service of the summons.

First, the district court found that appellants never provided the affidavit of expert review within 90 days of commencement of a malpractice action that is required when an affidavit of delay is served with the complaint.  Section 145.682, subdivision 3(b), provides that when expert review cannot be obtained before the action is commenced, an affidavit of expert review conforming to the requirements of section 145.682, subdivision 3(a), must be served on a defendant or defendant’s counsel within 90 days of service of the summons.  Appellants argue that they were not obligated to provide an affidavit of expert review because respondent did not demand one.[1]  For this argument, they rely on section 145.682, subdivision 6, providing that failure to comply with section 145.682, subdivision 2(1), within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal of the action.  However, section 145.682, subdivision 2(1), begins with the phrase, “unless otherwise provided in subdivision 3, paragraph (b)[.]”  Appellants elected to follow “subdivision 3, paragraph (b),” governing situations where expert review cannot be obtained before an action is commenced.  Therefore, sections 145.682, subdivision 2(1), and 145.682, subdivision 6, do not apply.

Thus,

[f]or one who knows the requirements of [section 145.682], indicated by the submission of an affidavit for delay, the statute permits compliance within 90 days and requires no demand for compliance.

 

Paulos v. Johnson, 502 N.W.2d 397, 399 (Minn. App. 1993), review denied (Minn. Sept. 10, 1993).  Appellants’ attorney submitted an affidavit for delay.  The district court correctly held that respondent did not need to demand an affidavit of expert review to trigger appellants’ obligation to serve such document. 

            Second, the district court found that appellants’ disclosure of their expert’s opinions did not meet the section 145.682, subdivision 4, requirement that this disclosure be made in the form of either an affidavit or answers to interrogatories signed by the plaintiff’s attorney and by the expert.  Appellants’ “Disclosure of Opinions of Expert Witness” was not in affidavit form because the signatures were not notarized; nor was it in the form of answers to interrogatories, because respondent did not serve interrogatories.  The district court correctly found that appellants did not comply with section 145.682, subdivision 4, as to form.

            Third, and most significantly, the district court found that appellants did not comply with the substantive requirements of section 145.682, subdivision 4.   Anderson v. Rengachary, 608 N.W.2d 843, 848 (Minn. 2000), addresses compliance with this statute. 

The district court correctly concluded [the] affidavit of expert identification was insufficient because it did not clearly set forth the standard of care, the defendant’s acts or omissions that allegedly violated that standard, and the chain of causation between these violations and the plaintiff’s injury.

 

In Anderson, 608 N.W.2d at 847-48, the supreme court reviewed its earlier interpretations of subdivision 4:  Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577-78 (Minn. 1999), where an affidavit containing broad and conclusory statements as to causation did not satisfy statutory requirements; Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 554, 556 (Minn. 1996), where an affidavit that stated that a failure to diagnose and treat a condition had resulted in death was held not to provide an outline of the chain of causation between the violation of the standard of care and the damages; and Sorenson, 457 N.W.2d at 193, holding in dicta that plaintiffs are expected to provide specific details of their experts’ testimony including the applicable standard of care, the defendant’s acts or omissions that allegedly violated that standard, and the chain of causation that resulted in the damages.

            Here, the disclosure said only that the expert believed and was expected to testify that respondent diagnosed lung tissue as a carcinoid tumor when it was in fact a non-Hodgkins lymphoma.  Like the affidavit in Anderson, the disclosure did not clearly set forth the standard of care, the defendant’s acts or omissions that violated that standard, and the chain of causation between these violations and the injury.  608 N.W.2d at 848.  Unless every misdiagnosis is to be deemed a breach of the standard of care, the district court did not abuse its discretion in finding that appellants’ disclosure of expert review did not meet the requirements of section 145.682, subdivision 4.[2]

            We conclude that the district court correctly dismissed appellants’ complaint for lack of statutory compliance.

2.         Motion for Additional Time

            We review denial of a motion for additional time to comply with section 145.682 under an abuse-of-discretion standard.  See Lindberg, 599 N.W.2d at 578-79.  Because appellants did not seek additional time until after the 180-day period had expired, they must show that their failure to submit a timely affidavit of expert review was the result of excusable neglect.  See Minn. R. Civ. P. 6.02(2).  Excusable neglect requires the moving party to show a reasonable suit on the merits, a reasonable excuse for failure to comply with the time limit, due diligence after receiving notice of the time limit, and that no substantial prejudice results to the other party.  Anderson, 608 N.W.2d at 850.  Here, appellants’ success on the merits is contingent on their expert’s testimony, but the expert’s affidavit details no specific wrongdoing on respondent’s part that resulted appellant’s damages.

            Appellants also cite a dictionary definition of “substance” and contend that they provided the “substance of the facts and opinions” to which their expert was expected to testify as prescribed by section 145.682, subdivision 4.  But the supreme court’s four cases are the applicable authority on the statutory compliance issue.  Because appellants have failed to demonstrate both a viable suit on the merits and a reasonable excuse for delay, the district court did not abuse its discretion in denying their motion for additional time.

3.         Constitutionality of Minn. Stat. § 145.682

            The constitutionality of a statute is a question of law that we review de novo.  In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).  Because statutes are presumed constitutional, this court exercises its power to declare a statute unconstitutional with extreme caution and only when absolutely necessary.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  The party challenging a statute must demonstrate beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.  Id

Appellants contend that section 145.682 violates procedural due process.[3]  A challenge to procedural due process requires the reviewing court to weigh the governmental interest at stake, the private interest at stake, and the availability of other procedural safeguards.  In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn. 1996).  The governmental interest here is to eliminate or at least discourage meritless malpractice claims in an effort to reduce increasing insurance premiums and health care costs.  Henke v. Dunham, 450 N.W.2d 595, 598 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990).  While the statute eliminates the right to bring medical malpractice claims unless a qualified expert testifies to the merit of the claim, it both permits and facilitates the bringing of meritorious malpractice claims. 

Appellants’ interest is in bringing a malpractice claim.  But litigants’ interests in bringing claims are necessarily subject to certain restrictions—such as statutes of limitations—even when those claims are indisputably meritorious.  Moreover, section 145.682 provides procedural safeguards for meritorious malpractice claims.  Appellants have not shown beyond a reasonable doubt that the statute violates the constitutional right to due process.

            The district court did not abuse its discretion in rejecting appellants’ claim that section 145.682 is unconstitutional.

            Affirmed.



[1] We note that, while respondent did not specifically demand an affidavit of expert review, it did demand in its answer that appellants comply with all the requirements of section 145.682.

[2] Appellants argue that the district court abused its discretion by considering their compliance not with the plain language of the statute but rather with the statute as interpreted in Anderson, Lindberg, Stroud, and Sorenson.  Appellants offer no support for their view that supreme court interpretation of statutes is not binding on this court or the district courts.

[3] Appellants support their argument that Minn. Stat. § 145.682 violates the separation of powers doctrine only by quoting, in their reply brief, a paragraph from the dissenting portion of a concurring in part, dissenting in part opinion in Anderson.  This quotation does not meet appellants’ burden of demonstrating beyond a reasonable doubt the unconstitutionality of the statute on separation of powers grounds.