This opinion will be unpublished and

may not be cited except as provided by

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








Audrey Johnson,





Mark H. Montgomery, M.D., et al.,




Filed August 28, 2001


Schumacher, Judge


Hennepin County District Court

File No. 984978



Steven D. Emmings, John W. Carey, Sieben, Grose, Von Holtum & Carey, Ltd., 117 South Park Street, Box 549, Fairfax, MN 55332 (for appellant)


William M. Hart, Erica Gutmann Strohl, J. Richard Bland, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)



Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Parker, Judge.*



Audrey Johnson appeals the dismissal of this medical malpractice action for failure to identify the allegedly negligent acts or omissions as required under Minn. Stat.  145.682 (2000). We affirm.


In the spring of 1997, Earl Johnson was experiencing breathing problems. He was diagnosed with nasal polyps at the Attentive Care Clinic and was referred to respondent Mark H. Montgomery, M.D., at respondent Oakdale Ear, Nose and Throat Clinic, P.A., for possible surgery to correct the breathing problem.

On June 9, 1997, Dr. Montgomery examined Johnson and, after discussing the risks and benefits, tentatively scheduled surgery for June 23, 1997. Dr. Montgomery then informed the Attentive Care Clinic, as Johnson's primary-care provider, of the pending surgery and requested that they perform a pre-operative history and physical to determine whether Johnson was a suitable candidate for the planned procedure. On June 19, 1997, Jeffrey Olive, M.D., of the Attentive Care Clinic conducted the pre-operative examination.

On June 23, 1997, the morning of the surgery, Dr. Montgomery reviewed Dr. Olive's notes from the pre-operative examination. Dr. Olive's notes stated that there were no medical contraindications for surgery. Nevertheless, in reviewing the notes, Dr. Montgomery observed that Johnson suffered from various conditions of concern and thus asked Johnson whether any of those conditions was active. Johnson told him that the problems were not active, and Dr. Montgomery proceeded with the surgery. Johnson died on the following day.

On July 30, 1998, Audrey Johnson, individually and as trustee for the next-of-kin of Earl Johnson, commenced this medical-malpractice action against Dr. Montgomery and the Oakdale Clinic. In January 1999, Johnson served her Affidavit of Expert Identification pursuant to Minn. Stat. 145.682 (2000). The affidavit, dated January 19, 1999, identified plaintiff's expert as Dr. Marcelo Hochman, a board-certified otolaryngologist, and opined that if Johnson had been properly evaluated prior to surgery, the procedure would not have been recommended.

On October 16, 2000, Dr. Montgomery and the Oakdale Clinic moved for dismissal with prejudice, asserting that plaintiff's affidavit of expert identification was insufficient under Minn. Stat. 145.682. The district court heard arguments on the motion and subsequently dismissed, concluding that the affidavit was insufficient under Minn. Stat. 145.682 because it did not clearly set forth the acts or omissions that violate the standard of care.


Under Minn. Stat. 145.682 (2000), a plaintiff who brings a medical-malpractice claim 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. Id., 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 572 (quoting Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn. 1990)).

In this case, the district court ruled that the affidavit failed to clearly set forth the acts or omissions that violated the standard of care. The district court noted that the affidavit appears to set forth the applicable standard of care as follows: "It is incumbent upon the surgeon to be familiar with a patient's past medical history and its relevance to the procedure planned." But the district court observed that nowhere does the affidavit disclose the acts or omissions that violate this standard of care. Rather, the affidavit ignores the undisputed facts that prior to surgery Dr. Montgomery ordered and reviewed the pre-operative physical and history.

Our review of the affidavit reveals no error in the district court's analysis. The affidavit states that Dr. Montgomery did not properly evaluate Johnson prior to surgery and that a proper evaluation would have included an investigation into Johnson's medical history. The affidavit further states that a proper pre-operative evaluation would have disclosed that the risks in performing the procedure may have outweighed the benefits Johnson stood to gain from the procedure. But there was a pre-operative physical and history performed, which was evaluated by Dr. Montgomery prior to surgery. The affidavit is devoid of any specific acts or omissions that violated the given standard of care. The district court did not abuse its discretion in dismissing this action pursuant to Minn. Stat. 145.682.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.