This opinion will be unpublished and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

C3-01-492

 

 

Alan Keith Stodgell, as Trustee for the next of kin of

Dillon Alan Stodgell, Deceased, et al.,

Appellants,

 

vs.

 

Deborah J. Erickson, M.D., et al.,

Defendants,

 

City of Warroad, d/b/a Warroad Rescue,

Respondent.

 

 

Filed August 28, 2001

Reversed and remanded

Schumacher, Judge

 

Roseau County District Court

File No. C7000081

 

 

Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401-2526 (for appellants)

 

Pierre N. Regnier, Marlene S. Garvis, Jardine, Logan & O'Brien, P.L.L.P., 444 Cedar Street, Suite 2100, St. Paul, MN 55101-2160 (for respondent)

 

 

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, ROBERT H., Judge

Appellants Alan Keith Stodgell, as trustee for the next of kin of Dillon Alan Stodgell, deceased, and Tracy Eilene Stodgell, individually (the Stodgells), appeal the dismissal of their medical-malpractice action for failure to identify the standard of care applicable to respondent City of Warroad, d/b/a Warroad Rescue as required under Minn. Stat.  145.682 (2000). We reverse and remand.

FACTS

In 1995, when he was less than a year old, Dillon Alan Stodgell was the recipient of a heart transplant at the Denver Children's Hospital. The complaint alleges that on October 18, 1997, Dillon was brought to Roseau Area Hospital and Home emergency room, where he was observed and treated by Dr. Deborah Erickson, who recognized that Dillon's heart was in acute trouble. Dr. Erickson contacted Dr. Mark Zittergruen at the Fargo MeritCare Health Center, and they arranged for Dillon to be transported by a Warroad Rescue ambulance from the Roseau hospital to the Fargo hospital. The phone call for ambulance services occurred at approximately 10:00 a.m., and the ambulance from Warroad arrived at the Roseau hospital by about 12:00 Noon.

Dillon was transported in the same ambulance as an adult patient with a broken leg, who was dropped off first at a Grand Forks hospital. Dillon arrived at the Fargo hospital at around 5:00 p.m. At approximately 9:00 p.m., Dillon went into cardiac arrest and died.

After the death of their son, the Stodgells sued Dr. Erickson, Dr. Zittergruen, Roseau Area Hospital, MeritCare Medical Group, Inc., MeritCare Hospital, MeritCare Health System, Warroad Rescue, and Altru Health System for medical malpractice (wrongful death), violation of the federal patient anti-dumping act, and negligence. In April 2000, the Stodgells submitted a timely expert disclosure pursuant to Minn. Stat.  145.682 (2000), consisting of the affidavits of six expert witnesses.

In September 2000, Warroad Rescue brought a motion to dismiss based upon failure to comply with Minn. Stat. 145.682. After a hearing, the district court granted the motion, concluding that the expert affidavits did not identify the standard of care applicable to Warroad Rescue.

D E C I S I O N

1. As a threshold matter, the Stodgells argue that Minn. Stat. 145.682 (2000) is not applicable under the facts and that no expert affidavits are necessary to establish a standard of care applicable to Warroad Rescue. When within common knowledge of a lay person, expert testimony is not necessary to establish a prima facie case of the elements of a medical-malpractice claim. Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000). Accordingly, this court recently explained that when paramedics are performing functions not requiring professional training or judgment, such as using an address to locate a home when responding to an emergency, the standard of care is that of a reasonable person rather than that of a medical professional. Blatz v. Allina Health Sys., 622 N.W.2d 376, 385 (Minn. App. 2001), review denied (Minn. May 16, 2001).

In this case, however, the functions complained of, such as failure to properly monitor and treat Dillon during transport, require professional training or judgment. Accordingly, Minn. Stat. 145.682 applies to the claim against Warroad Rescue.

2. Under Minn. Stat. 145.682, a plaintiff who brings a medical-malpractice action must file an affidavit that identifies (1) qualified experts who intend to testify; (2) the substance of their testimony; and (3) a summary of the basis for the experts' opinions. Minn. Stat. 145.682, subd. 4(a). The affidavit must state the expert's opinion that "one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff." Id., subd. 3(a). Failure to comply with the affidavit requirements mandates dismissal of the plaintiff's cause of action with prejudice. Id., subd. 6; Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577 (Minn. 1999).

Absent an abuse of discretion, this court will not reverse a district court's dismissal of a suit pursuant to Minn. Stat. 145.682. Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn. 2000). In determining whether to dismiss a claim under Minn. Stat.  145.682 for the inadequacy of an expert affidavit, the district court must read the affidavit as a whole. See Demgen v. Fairview Hosp. & Healthcare Servs., 621 N.W.2d 259, 262-63 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001). At a minimum, the affidavit

must disclose "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" between the violation of the standard of care and the plaintiff's damages.

 

Lindberg, 599 N.W.2d at 577 (quoting Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn. 1990)).

In this case, the district court concluded that none of the expert affidavits sufficiently set forth the standard of care applicable to Warroad Rescue. The Stodgells submitted affidavits of six expert witnesses, including an affidavit of Craig Dunham, a paramedic and certified EMT instructor. Much of Dunham's lengthy affidavit provides specific details of possibly negligent acts or omissions without expressly identifying the concomitant standard of care. Among other things, Dunham's affidavit states that Warroad Rescue was negligent by transporting Dillon on a non-emergency basis, transporting another patient to Grand Forks in the same ambulance, failing to adequately monitor Dillon's condition, failing to radio the hospital as his condition worsened, failing to recognize the obvious signs that his condition was deteriorating, and failing to consult with doctors in Grand Forks.

From the Dunham affidavit, the relevant standard of care is ascertainable only by negative inference. But, in at least one instance, the affidavit does, substantially and positively, state a standard of care applicable to Warroad Rescue. Paragraph 41 provides:

When the ambulance stopped at United Hospital in Grand Forks, North Dakota, there were sufficient indicators that Dillon Stodgell was deteriorating and in need of intervention to, at minimum, require the ambulance personnel to consult the United Hospital staff and doctors about what to do, or to call ahead to MeritCare or back to Roseau Area Hospital for guidance.

 

This is an affirmative statement of the minimum conduct expected of ambulance personnel. Accordingly, the district court abused its discretion in ruling the affidavits did not sufficiently set forth a standard of care applicable to Warroad Rescue. We reverse the dismissal and remand the matter for further proceedings.

We note that the district court also faulted the Stodgells' affidavits for failure to identify who among the multiple defendants was responsible for the allegedly negligent acts or omissions. But it is certainly conceivable that there can be more than one responsible party, and whether any or all of the responsible parties were actually negligent is a question of fact. See Canada by Landy v. McCarthy, 567 N.W.2d 496, 505 (Minn. 1997) (negligence is ordinarily question of fact). Review of affidavits under Minn. Stat. 145.682 is not a trial on the merits, but merely a determination of whether the affidavit puts the defendants on notice of the proposed expert, his qualifications, and his medical opinions covering the areas of the applicable standard of care, negligence, and causation. Demgen, 621 N.W.2d at 265.

3. The Stodgells also contend that the district court improperly weighed evidence outside the affidavits and failed to accept the averments in the expert affidavits as true. Generally, a motion to dismiss should be evaluated on the pleadings, and if matters outside the pleadings are presented to and considered by the district court, the motion shall be treated as a rule 56 summary judgment motion. See Minn. R. Civ. P. 12.03. In the medical-malpractice context, we recently explained that it is improper for a district court to rely on rebuttal affidavits and discovery evidence when weighing and analyzing the adequacy of expert affidavits under Minn. Stat. 145.682. Demgen, 621 N.W.2d at 266.

Here, the district court's recitation of the facts in the dismissal order appears to rely on discovery facts not generally considered under a rule 12 motion for dismissal. While it does not appear that outside evidence in this case ultimately played a role in the district court's legal analysis, we nonetheless point out of the differences between rule 12 dismissal and rule 56 summary judgment.

Reversed and remanded.