This opinion will be unpublished and

may not be cited except as provided by

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








David R. Crary,





Dr. Hoffman and Associates, P.A., et al.,



Filed March 26, 2002


Robert H. Schumacher, Judge


Nobles County District Court

File No. C500844



William J. Wetering, 1206 Oxford Street, Post Office Box 9, Worthington, MN 56187 (for appellant)


Richard A. Lind, William L. Davidson, Paul A. Bolin, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondents)



Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Huspeni, Judge.*



Appellant David R. Crary contends that the district court erred in dismissing his medical malpractice lawsuit with prejudice pursuant to Minn. Stat. 145.682 (2000) for failure to comply with the statute's requirements regarding expert affidavits. We affirm.


On December 30, 1997, Crary sought medical advice and possible treatment for a foot problem from respondent Dr. Scott J. Hoffman. Dr. Hoffman performed joint destructive surgery on January 27, 1998, removing the joint of Crary's big toe on his right foot. On September 26, 2000, Crary initiated a lawsuit against Dr. Hoffman and respondents Dr. Hoffman and Associates, P.A. and Dr. David W. Pederson, alleging Dr. Hoffman was negligent for: (1) performing a joint destructive surgery removing the joint on Crary's big toe because such surgery was unnecessary; (2) advising Crary that medication and orthotics would not provide Crary any relief; (3) not informing Crary as to the risks attendant to the surgery; and (4) performing the operation in a way that resulted in Crary's permanent pain and disability.

The relevant facts are uncontested. Minnesota Statute Section 145.682, subdivision 2 requires two affidavits when a claimant pursues a claim against a health care provider in which expert testimony is necessary to establish a prima facie case. The first of these is an affidavit from plaintiff's attorney, which is to be served with the complaint, stating that the attorney has reviewed the case with a qualified expert who opines that one or more of the defendants deviated from the applicable standard of care thereby causing injury. Id. at subd. 3. Crary served his lawsuit without this affidavit of expert review. Although the statute provides a claimant with 60 days in which to cure this defect upon notification and demand by the defendant(s), it is undisputed that Crary never provided this affidavit, despite such demand by counsel for Dr. Hoffman.

The statute also requires a second affidavit to be served within 180 days of commencing suit. Id. at subd. 2(2). This affidavit of expert identification is from the expert witness and must be signed by the expert witness and the plaintiff's attorney. Id. at subd. 4. Crary did provide a skeletal affidavit from a doctor, but it was not signed by counsel. The statute allows for answers to interrogatories to substitute for the affidavit but requires signatures from each testifying expert and counsel. Id. Only Crary signed the answers to interrogatories.


A district court's dismissal of a lawsuit pursuant to Minn. Stat. 145.682 is subject to reversal only when the district court abused its discretion. Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn. 2000); Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996). Construing the requirements under Minn. Stat. 145.682 involves statutory interpretation, a question of law subject to de novo review, however. Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000). The supreme court has set forth a strict standard for complying with the affidavit of expert identification required under Minn. Stat. 145.682:

In cases commencing after this opinion is filed * * * we will expect a more complete disclosure. * * * [P]laintiffs 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.


Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 576 (Minn. 1999) (quoting Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn. 1990). Additionally, the supreme court has stated that materials outside of the affidavits or properly substituted interrogatories cannot "excuse or justify an affidavit of expert identification falling short of the substantive disclosure requirement." Lindberg, 599 N.W.2d at 578. Failure to comply with the requirements regarding each of the affidavits results in "mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case." Minn. Stat. 145.682, subd. 6.

In the present case, the district court determined that dismissal was required because of Crary's technical inadequacies under Minn. Stat. 145. 682. As such, the district court did not directly rule on the substantive adequacy of Crary's submissions. The district court did suggest, however, that the sum total of Crary's information about his claims supplied adequate information were it not for the procedural flaws. Crary argues that he has satisfied the purpose of the rule by supplying adequate information indicating his expert's opinion on his causes of action and establishing his prima facie case for malpractice.

The case law indicates otherwise. Crary's submissions do not fulfill the supreme court's mandate as set forth in Lindberg and Sorenson. The Lindberg decision prohibits considering materials outside of a proper affidavit and the answers to interrogatories. 599 N.W.2d at 578. Thus, the letters from Crary's doctors, none sworn and most unsigned, cannot supplement Crary's other submissions. This leaves the affidavit of Dr. David C. Stege and Crary's answers to interrogatories as the materials relevant to a determination as to Crary's compliance under Minn. Stat. 145.682.

Even without the procedural inadequacies, Dr. Stege's affidavit is substantively inadequate. Dr. Stege's affidavit consists of five short paragraphs, the first three of which are background information. Paragraphs four and five make up the whole of Dr. Stege's substantive opinion and state as follows:

Your Affiant believes that David Crary has need for additional surgery caused by Dr. Hoffman's departure from the applicable standard of care in treating David Crary on January 27, 1998.


Your Affiant believes to a reasonable degree of medical certainty that the level of subjective complaints from the patient together with a review of the x-rays indicates the joint destructive procedure was contraindicated.

As for Crary's answers to interrogatories, the responses relevant to the requirements under Minn. Stat. 145.682 are numbers 10 and 11. Interrogatory ten asks Crary to specify in detail each contention regarding Dr. Hoffman's alleged deviation from the applicable standard of care, each act or omission related to each such contention, and the conduct Dr. Hoffman should have undertaken or avoided to meet the standard of care. Crary's response: "See report of Dr. Stege." The only such report at that time was Dr. Stege's affidavit, set forth above. The unsigned letter from Dr. Stege, containing additional information, was not yet in existence. Nor is it to be considered. See Lindberg, 599 N.W.2d at 578. Interrogatory 11 asked for specific details as to each and every thing Crary claimed Dr. Hoffman informed him regarding the risks associated with the surgical procedure and everything that Crary alleges Dr. Hoffman should have told him, but did not, regarding the risks. Finally, interrogatory 11 asks Crary to explain in detail his claim that, had he been provided with the information to which he claims he was entitled, he would not have consented to the surgery. Crary's response:

Defendants should have told Plaintiff that they were going to remove the toe joint, that the shortened toe would present problems regarding overlapping the next toe, the procedure could result in permanent, constant pain, that the procedure would result in loss of movement and motion in the toe joint, that if the procedure was not successful, it could result in future surgeries such as a fusion or a prosthetic joint, and that the procedure could result in pain in other portions of the foot.


I had explained to the Defendant doctors that I was only having pain when I would walk nine holes or further on the golf course and that it did not bother me otherwise. If the risks stated above had been explained to me, I never would have had the operation done.

Essentially, Crary's lawsuit boils down to two separate assertions: (1) the surgery never should have been performed because it was contraindicated; and (2) Dr. Hoffman failed to adequately disclose the attendant risks such that Crary's consent was not informed and therefore invalid. Dr. Stege's affidavit deals with the first claim; the answers to interrogatories seem to address the second claim.

Even putting aside the procedural flaws in Crary's submissions, it is fairly clear that his submissions are substantively inadequate as to his contraindicated surgery claim. Dr. Stege's affidavit provides only the "empty conclusions" condemned in Lindberg. Dr. Stege does not state what the applicable standard of care is nor provide any details as to how Dr. Hoffman failed to meet this standard of care. Dr. Stege's opinion that the surgery was contraindicated does not translate to a per se failure to meet the standard of care. Health care providers can certainly disagree as to diagnoses or the most appropriate procedure or treatment for a particular patient or problem. Dr. Stege's opinion that he would have analyzed the situation differently does not mean that Dr. Hoffman's conduct constitutes malpractice. Dr. Stege never actually alleged as much. The affidavit also contains nothing regarding causation; Dr. Stege does not assert that Crary has suffered any damages as a result of the contraindicated operation. It falls far short of the "outline of the chain of causation" mandated in Lindberg and Sorenson.

The interrogatory responses also fall short. Here Crary asserts that Dr. Hoffman neglected to adequately inform him of the risks. Crary goes on to claim that if he had been adequately informed, he would not have had the surgery at all. Crary also asserts that he has permanent and constant pain as a result of the surgery. The "informed consent" claim arguably does not involve complicated issues as to causation. It would seem that a claimant could establish part of his prima facie case as to causation by alleging that additional information regarding the risks and consequences of a particular procedure would have resulted in no procedure at all. See, e.g., Tousignant, 615 N.W.2d at 59-60 (if facts necessary to make claimant's prima facie case are "within the general knowledge and experience of lay persons, then expert testimony is not required" nor is compliance with statute).

Linking the procedure itself to the pain or other damages that the claimant alleges would seem to require some specialized knowledge, i.e., expert testimony. Likewise, the allegations as to what the appropriate standard of care requires with respect to disclosure of the risks and consequences would also require specialized knowledge. As the court pointed out in Tousignant, "it is an exceptional medical malpractice case that does not require expert testimony to establish a prima facie case." Id. at 61 (citing Sorenson, 457 N.W.2d at 191).

Because of these factors, Crary's failure to secure the signatures of his experts, under oath, on the interrogatory responses becomes more than just a technical failure under Minn. Stat. 145.682. Only Crary signed the responses. Crary clearly is not qualified to testify as to the appropriate standard of care regarding Dr. Hoffman's informing and disclosing the potential risks and consequences of the procedure, however. Also, Crary is not qualified to make the final causal connection between his pain and the surgery itself. Crary needed an expert witness to supply these crucial pieces of the puzzle. None has ever done so. The technical failures become substantive considering the foundational requirements for the testimony offered and required under the statute.

Accordingly, Crary's submissions failed to meet the substantive requirements under the statute in addition to the procedural flaws the district court correctly cited. Crary failed to meet the requirements of Minn. Stat. 145.682. The statute requires dismissal of his lawsuit. The district court did not abuse its discretion in so ruling.


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