This opinion will be unpublished and

may not be cited except as provided by

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







Darlene Comstock,





Ned A. Nippoldt, et al.,




Filed January 29, 2002

Foley, Judge


Washington County District Court

File No. C3-01-438



Mark N. Jennings, Jennings, Dewan, Miller & Anderson, P.A., Post Office Box 8, 6338 Main Street, North Branch, MN  55056 (for appellant)


Katherine A. McBride, Barbara A. Zurek, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402 (for respondents)


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant brought this action for breach of contract, violation of the Consumer Fraud Act, Minn. Stat. § 325F.68-70 (2000), and breach of consumer warranties under Minn. Stat. § 325G.17-20 (2000), claiming that she contracted for dental implants and a partial lower denture, but instead received a full removable lower denture.  The district court dismissed the action with prejudice because appellant failed to comply with the malpractice action expert affidavit requirement of Minn. Stat. § 145.682 (2000).  Appellant contends that such affidavits are not required because her case is not one of malpractice.  Because we hold that the dental treatment she received fell within the scope of the doctor-patient relationship, we affirm.


            In May 1997, appellant Darlene Comstock visited the dental office of respondent Dr. Ned Nippoldt to discuss the possibility of receiving a new upper denture and some type of lower tooth replacement.  Among the options presented to her, Dr. Nippoldt discussed a procedure whereby an oral surgeon would extract her bottom four teeth and attach five steel pegs to her lower jaw, and Dr. Nippoldt would then implant individual teeth on the pegs.  The pegs could also be used to support a removable denture.  Comstock agreed to proceed with the implants.  Dr. Nippoldt’s records, however, reflect that Comstock expressed a preference for a removable denture that would fit over the metal structure.

            After the oral surgeon implanted the steel pegs, Comstock waited a year for them to adhere to her jawbone.  When she returned to Dr. Nippoldt’s office to have an impression made of her lower jaw, one of the pegs became loose and had to be removed.  The oral surgeon and Dr. Nippoldt assured her that the four remaining pegs would be sufficient to hold her prosthetic reconstruction, and Dr. Nippoldt fit her with a removable lower denture that was placed over the top of the metal structure.  However, immediately after this procedure, Comstock discovered that she had not received the individual permanent dental implants that she believed she had bargained for. 

            After the complaint was filed, the district court granted Dr. Nippoldt’s motion to dismiss based on Comstock’s failure to file an expert affidavit as required by Minn. Stat. § 145.682 (2000) for medical malpractice actions.  This appeal followed.   


The issue of whether this case is governed by Minn. Stat. § 145.682 (2000), which requires affidavits of expert testimony in most medical malpractice actions, presents a question of statutory construction.    As such, it is a question of law, which we review de novo.  Sorensen v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). 

Basic rules of statutory construction prescribe that words and phrases of a statute are to be construed according to their plain and ordinary meaning.  Baker v. Ploetz, 616 N.W.2d 263, 268 (Minn. 2000).  The statute at issue here reads:  

            In an action alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider which includes a cause of action as to which expert testimony is necessary to establish a prima facie case, the plaintiff must * * * serve upon the defendant with the summons and complaint an affidavit [of expert review] * * *.

Minn. Stat. § 145.682, subd. 2 (2000) (emphasis added).   This statute applies to dentists.   Minn. Stat. § 145.682, subd. 1 (2000).  Therefore, even though this action sounds in contract, if it alleges error, mistake, or malpractice, and if expert testimony is necessary to establish a prima facie case against Dr. Nippoldt, the plain language of the statute states that expert affidavits must be filed.  This rule comports with the legislature’s intent, in enacting Minn. Stat. § 145.682, to eliminate nuisance medical malpractice lawsuits by requiring that plaintiffs file affidavits to verify that their allegations are well-founded.  Stroud v. Hennepin Cty. Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996). 

Comstock contends that because she alleges only breach of contract, consumer fraud, and breach of warranty claims, this action does not fall within the purview of Minn. Stat. § 145.682.  But the key to determining whether this action is akin to one for medical malpractice depends not on the language of the complaint in isolation, but rather on the real-world context of the claim.  In this regard, we examine whether the complained-of conduct flowed from the therapeutic relationship and constituted an integral part of the treatment process.  See D.A.B. v. Brown, 570 N.W.2d 168, 172 (Minn. App. 1997) (holding that because doctor’s duty to disclose kickback scheme was related to medical diagnosis, treatment, and care of patient, it was essentially a malpractice action subject to two-year medical malpractice statute of limitations.)   More specifically, we have held that

expert affidavits are required when a health care provider is accused of “malpractice, error, mistake, or failure to cure” as a result of giving care or treatment.

Canfield v. Grinnell Mut. Reins. Co., 610 N.W.2d 689, 693 (Minn. App. 2000) (emphasis added), review denied (Minn. July 25, 2000).  

            In this case, the actions giving rise to Comstock’s complaint arose exclusively within the context of a doctor-patient relationship.  Dr. Nippoldt recommended a treatment plan, referred Comstock to an oral surgeon, and fitted her with dentures.  All of these activities involved rendering patient care.  Rather than simply purchasing a product, Comstock was relying on Dr. Nippoldt’s professional judgment as he performed therapeutic dental services.  Therefore, the district court properly found this case to fall within the scope of the affidavit requirement.

            In order to establish a prima facie case of medical malpractice, a plaintiff must introduce expert testimony to establish the standard of care, the defendant’s departure from that standard, and causation when these elements are not within the common knowledge of laypersons.  Reinhardt v. Colton, 337 N.W.2d 88, 94-95 (Minn. 1983).  Comstock argues that, even if this action is treated as one for medical malpractice, it is excepted from the requirements of Minn. Stat. § 145.682 because the complained-of acts or omissions lie within the common knowledge of laypersons.  See, e.g., Tousignant v. St. Louis Cty., 615 N.W.2d 53, 59 (Minn. 2000) (district court finding that nursing home staff exercised some medical judgment in interpreting how to restrain patient was held insufficient to require expert affidavit, where court failed to find that those medical judgments were not within general knowledge of laypersons).

            But the supreme court has allowed a medical malpractice claim to proceed without expert testimony only in “exceptional cases.”  Sorensen, 457 N.W.2d at 191.  This is not such an exceptional case.  Defining the applicable standard of care in this case involves the medical question of the suitability of implants, as opposed to removable dentures, for this particular plaintiff.  Comstock further admits that expert testimony will be required to establish causation between the denture she received and the physical pain for which damages are sought.  Therefore, because expert medical testimony is necessary to establish a prima facie case, the district court did not err in dismissing the action.



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