This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-4

 

Darcy C. Bielke,

Appellant,

 

vs.

 

Fairview-University Medical Center, et al.,

Defendants,

 

Regents of the University of Minnesota,

Respondent.

 

Filed September 30, 2003

Reversed and remanded

Halbrooks, Judge

 

Hennepin County District Court

File No. MP 02-3530

 

Kay Nord Hunt, Robert J. King, Jr., Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for appellant)

 

David C. Hutchinson, Carolin J. Nearing, Geraghty, O’Loughlin & Kenney, P.A., 386 North Wabasha Street, Suite 1400, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Darcy Bielke challenges the district court’s dismissal of her medical-malpractice claim.  Appellant argues that the district court abused its discretion by denying her motion for an extension of time to serve respondent with affidavits of expert identification and by granting respondent’s motion to dismiss based on appellant’s failure to establish a prima facie case.  Because we conclude that the district court abused its discretion, we reverse and remand. 

FACTS

Appellant Darcy Bielke was admitted to Fairview-University Hospital for low back surgery on November 3, 1999.  The surgical procedure involved a transabdominal lumbar fusion with a free fibula graft from her left leg.  Timothy Garvey, M.D., performed the primary surgical procedure and second-year resident, Anthony Sestero, M.D., assisted him.  The surgery concluded at about 10:00 p.m.  Drs. Garvey and Sestero assessed appellant’s medical condition following surgery and concluded that her condition was then satisfactory.  Dr. Garvey testified that because there was a risk of vascular complications, it was essential to ensure that appellant had an adequate vascular supply to her left leg.

            As the resident under Dr. Garvey, Dr. Sestero was left in charge of appellant’s post-operative care.  Dr. Garvey asked Dr. Sestero to communicate to the nurses to check appellant’s vital signs and to conduct a neurovascular assessment of her left leg twice an hour for the first six hours and once an hour for the following six hours.  If the nurses had any questions or concerns, they were to contact Dr. Sestero.  Dr. Sestero left the hospital at approximately 10:30 p.m.

            At about 1:00 a.m., the charge nurse called Dr. Sestero to report that appellant was experiencing a level of pain that appellant rated a 10 out of 10.  Dr. Sestero ordered additional pain medication.  At about 3:00 a.m., the on-duty nurse became concerned because she could not find a pedal pulse in appellant’s left foot.  Appellant’s foot was becoming progressively cooler and more numb; appellant was unable to move her toes and was still experiencing the same high level of pain.  The charge nurse called Dr. Sestero again and reported appellant’s deteriorating condition.  Dr. Sestero instructed the nursing staff to check for compartment syndrome[1] by checking appellant’s calf for tenderness and wiggling her toe.  Upon examination, appellant was able to move her toe a small amount and her calf seemed normal.  But she continued to complain of significant pain and her toes were numb.  In addition, the nurse was unable to find a pedal pulse. 

Dr. Sestero ordered the nursing staff to continue to watch appellant’s left leg and keep the bandage loosened.  When the nurse asked Dr. Sestero if he would like to come in to assess the leg for himself, he responded that it could wait until morning. 

            At about 6:00 a.m., Dr. Sestero returned to the hospital and conducted an examination of appellant.  At that time, appellant had no detectable pulse in her left foot or lower leg, no sensation below the ankle, no toe movement, loss of temperature in the lower leg, and pain in her foot and ankle.  While Dr. Sestero was assessing appellant, the chief resident, T.J. Panek, M.D., arrived and also examined appellant’s leg.  They concluded that the condition of appellant’s left leg had deteriorated and they had concerns about vascular abnormality.  Drs. Panek and Sestero then contacted Matthew Putnam, M.D., who had harvested the fibula from appellant’s left leg for surgery the preceding day, and gave him their assessment.  Dr. Putnam ordered that appellant be immediately sent to surgery. 

            Surgery revealed an occlusion of the left common iliac artery, which was repaired with the placement of a stent.  Dr. Garvey testified in his deposition that as a result of the decreased blood supply to appellant’s left foot, the nerves in her foot were damaged.  She now has permanent, persistent leg pain and weakness of her left foot.

            Appellant commenced a medical-malpractice suit against three parties, claiming that she suffered a vascular compromise that was not timely diagnosed.  She served Fairview-University Medical Center on February 7, 2002, Twin Cities Spine Center on February 8, 2002,[2] and the Regents of the University of Minnesota on February 11, 2002.[3]  With the complaint, appellant also served the affidavit of expert review required by Minn. Stat. § 145.682, subds. 2, 3 (2002), interrogatories, and a request for production of documents.  On May 22, 2002, appellant served notices of depositions for Drs. Sestero and Garvey and four nurses to take place on June 26, 27, and 28, 2002.  Dr. Garvey’s deposition went forward and was completed on June 28, 2002.  But due to conflicts in the nurses’ and Dr. Sestero’s schedules, respondent’s counsel requested that their depositions be rescheduled.  Respondent’s counsel agreed to provide appellant’s counsel with dates on which the witnesses could be available.  On June 27, 2002, appellant’s counsel wrote to respondent’s counsel to remind him to provide some additional dates.  Ultimately, the depositions of the nurses were taken August 12, 2002 and Dr. Sestero’s deposition was taken on August 22, 2002.  Upon receipt of copies of the nurses’ and doctors’ deposition transcripts, appellant’s counsel sent them to his three expert witnesses for review.

            Pursuant to Minn. Stat. § 145.682, subds. 2, 4 (2002), appellant was required to serve upon respondent her affidavits of expert identification within 180 days of commencement of the suit.  That deadline was on or about August 12, 2002, the day the nurses’ depositions were taken, and ten days before Dr. Sestero’s deposition was taken.  On about October 18, 2002, appellant’s counsel received a voicemail message from respondent’s counsel requesting appellant’s affidavits of expert identification.  In response, appellant’s counsel returned the call and said that he had the affidavits of two of appellant’s experts.  Those two expert affidavits were faxed to respondent’s counsel on October 21, 2002, and the third expert’s affidavit was mailed on October 25, 2002.  On October 31, 2002, appellant moved for an extension of time to serve the expert affidavits.  The district court denied appellant’s motion, and respondent moved for dismissal based on appellant’s failure to establish a prima facie case by complying with the requirements of Minn. Stat. § 145.682, subds. 2, 4.  The district court granted respondent’s motion to dismiss.  This appeal follows.

D E C I S I O N

Appellant argues that the district court abused its discretion by denying her motion for an extension of time to serve respondent with affidavits of expert identification and by granting respondent’s motion to dismiss based on appellant’s failure to establish a prima facie case.  Generally, a district court’s dismissal of a case based on procedural irregularities will be reversed on appeal only if the court abused its discretion.  Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996).  A district court’s dismissal of a claim pursuant to Minn. Stat. § 145.682 (2002) will be reversed only if we conclude that the district court abused its discretion.  Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 426 (Minn. 2002).

            To establish a prima facie case in a medical-malpractice action, a plaintiff must satisfy the two requirements provided in Minn. Stat. § 145.682, subd. 2.  Teffeteller, 645 N.W.2d at 426.  First, the plaintiff must serve the defendant with an affidavit of expert review satisfying the requirements of Minn. Stat. § 145.682, subd. 3, at the time the summons and complaint are served.  Minn. Stat. § 145.682, subd. 2.  Second, within 180 days after the commencement[4] of the lawsuit, the plaintiff must serve the defendant with an affidavit of expert identification that satisfies the requirements of Minn. Stat. § 145.682, subd. 4.  Id.  The affidavit of expert identification must set forth

[t]he identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of malpractice or causation, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.

 

Minn. Stat. § 145.682, subd. 4.  The purpose of Minn. Stat. § 145.682 is not to deprive plaintiffs of legitimate lawsuits, but to eliminate frivolous medical-malpractice lawsuits by requiring plaintiffs to file affidavits demonstrating that their allegations of malpractice are well-founded.  Stroud, 556 N.W.2d at 555; Hempel v. Fairview Hosps. and Healthcare Servs., Inc., 504 N.W.2d 487, 492 (Minn. App. 1993).   

We are not concerned here, as we frequently are when considering medical-malpractice claims, with the sufficiency of the affidavits involved.  The issue is the service of the affidavits after the statutory deadline.  The statute does contemplate the possibility of service outside the 180-day time frame.  The parties, by agreement, or the court, for good cause shown, may extend the 180-day deadline for serving affidavits of expert identification.  Minn. Stat. § 145.682, subd. 4(b).  But the statute also provides that failure to serve within the 180-day period “results, upon motion, 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(b). 

            Appellant commenced her medical-malpractice claim against respondent on February 11, 2002 by serving respondent with a summons and complaint.  Under Minn. Stat. § 145.682, subd. 2, appellant was required to serve respondent with an affidavit of expert identification by August 12, 2002, 180 days after the commencement of the suit.  Appellant admits that the affidavits of expert identification were not served on respondent within the 180-day time limit and that she did not move for a time extension before the August 12 deadline.  But appellant asserts that her failure to serve the affidavits of expert identification within the 180-day time period or to move for a time extension was the result of excusable neglect and that the district court abused its discretion by not granting her motion for a time extension under the circumstances.  We agree.

            In Stern v. Dill, 442 N.W.2d 322, 324 (Minn. 1989), the Minnesota Supreme Court held that Minn. Stat. § 145.682 must be read in conjunction with Minn. R. Civ. P. 6.02.  Rule 6.02 states:

                        When by statute . . . an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, . . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect[.]

 

To demonstrate excusable neglect, it must be established that the plaintiff

 

(1) has a reasonable suit on the merits, (2) has a reasonable excuse for failure to comply with [the] time limit set forth by Minn. Stat. § 145.682, subd. 2, (3) acted with due diligence after receiving notice of the time limit, and (4) no substantial prejudice results to the defendant. 

 

Anderson v. Rengachary, 608 N.W.2d 843, 850 (Minn. 2000).

            Here, the district court made explicit factual findings in its memorandum accompanying its order denying appellant’s time-extension motion “that the plaintiff has a reasonable case on the merits, that plaintiff exercised due diligence upon discovery of the failure to file the affidavits and that there is no substantial prejudice to the defendants other than having to address the case on the merits.”  In making these findings, the court found that three of the four factors used to analyze whether excusable neglect exists were satisfied.  But the court held that appellant did not satisfy the fourth factor necessary to prove excusable neglect because she failed to establish a reasonable excuse for her failure to serve affidavits of expert identification in a timely manner.  Thus, the sole issue before us on appeal is whether the district court abused its discretion in finding that appellant failed to establish a reasonable excuse for failure to comply with the statute.[5]

            In Parker v. O’Phelan, this court affirmed a district court’s decision to extend the time for serving an affidavit of expert review despite the fact that the plaintiff’s motion was made after expiration of the statutory time limit.  414 N.W.2d 534, 538 (Minn. App. 1987), aff’d mem., 428 N.W.2d 361 (Minn. 1988).  The district court reasoned that, although the statutory time limit had run, the delay in service was not long enough to indicate negligence on plaintiff’s part and the defendant had not been prejudiced by the delay.  Id. at 536.  This court examined the question of whether the statutory purpose of Minn. Stat. § 145.682 (to eliminate nuisance malpractice suits) is so frustrated by Minn. R. Civ. P. 6.02 that the two are inconsistent.  Id. at 537.  We determined that they are not inconsistent because a plaintiff still has to prove excusable neglect.  Id.  As a means of analyzing excusable neglect, we looked for guidance to cases involving relief from default judgment.  Id.  We concluded that the district court did not abuse its discretion because the record evidenced the plaintiffs’ justifiable confusion as to their legal representation and prompt action once they found an attorney.  Id. at 538. 

            Respondent cites Anderson, 608 N.W.2d at 849-50, in partial support of its argument that failure of appellant’s counsel to submit a timely affidavit is not the sort of inadvertence for which a finding of excusable neglect is supported by Minn. Stat. § 145.682.  Although the supreme court in Anderson first concluded that appellant waived the issue of excusable neglect by not moving in the district court for an extension of the 180-day time limit or otherwise properly raising the issue, the court chose to reach it.  Id. at 850.  The supreme court concluded that appellant had not demonstrated excusable neglect when she focused on the sufficiency of the expert’s affidavit but failed to outline any circumstances that prevented her from timely serving it.  Id.  This case is distinguishable, given the timing of the depositions.

            Appellant also asserts that she should not be penalized for the neglect of her attorney.  There are decisions in other legal contexts where Minnesota courts have relieved parties of the consequences of neglecting to file documents in a timely manner.  In Finden v. Klaas, the district court entered a default judgment against the defendant for failure to file an answer.  268 Minn. 268, 269-70, 128 N.W.2d 748, 749-50 (1964).  The Minnesota Supreme Court reversed, holding that the defendant’s failure to file an answer was the result of excusable neglect under Minn. R. Civ. P. 60.02 and that the defendant had a reasonable excuse because he entrusted the matter of filing the answer entirely to his attorney.  Id. at 271, 128 N.W.2d at 750-51.  In Charson v. Temple Israel, the district court dismissed the plaintiff’s contract claim for failure to file the summons and complaint with the court.  419 N.W.2d 488, 489 (Minn. 1988).  The Minnesota Supreme Court reversed, holding that the failure to file the summons and complaint was the result of excusable neglect under Minn. R. Civ. P. 60.02.  Id. at 491.  The court stated that, while the neglect of the plaintiff’s attorney was inexcusable, the plaintiff was not personally chargeable with inexcusable neglect and courts are loath to punish innocent clients for their counsel’s neglect.  Id.  In Nguyen v. State Farm Mut. Ins. Co., the district court entered judgment in favor of the plaintiff because the defendant failed to timely file a request for a trial de novo.  558 N.W.2d 487, 488 (Minn. 1997).  The supreme court reversed, holding that the failure to file the request was excusable neglect under Minn. R. Civ. P. 60.02 and that the failure was inadvertent and merely the result of an oversight.  Id. at 491.  The court also noted the “strong policy favoring the granting of relief when judgment is entered through no fault of the client.”  Id.

            In an affidavit, appellant’s counsel admits that the failure to serve the affidavits of expert identification in a timely manner was an “oversight on [his] part.”  He states that it has been his practice to obtain the depositions of the defendants and to provide the deposition transcripts to his expert witnesses before finalizing and serving affidavits of expert identification.  Appellant’s counsel’s experience has been that defense counsel routinely stipulate to time extensions when depositions for defendants are delayed at their request.  Nevertheless, appellant’s counsel concedes that he was neglectful in not moving for a time extension when it became clear that some of the depositions in this case would not occur until after the 180-day deadline had passed.

We recognize that an abuse-of-discretion standard on review is a high one to overcome.  But on this record, we conclude that appellant’s willingness to reschedule the depositions of the nurses and Dr. Sestero to a time on or after the 180-day deadline, in order to accommodate their scheduling conflicts, was sufficient to establish a reasonable excuse for not filing the affidavits of expert review within the 180-day timeline.  It clearly would have been preferable to move for extension of the deadline before August 12.  Had that occurred, most likely the district court would have granted appellant’s motion.  But appellant’s counsel relied on his past practice in a specialty area where a limited number of attorneys practice.  And the problem arose due to his willingness to accommodate respondent’s witnesses.

Given the district court’s specific findings of the reasonable merits of appellant’s claim, her due diligence once the failure to timely serve affidavits was discovered, and the lack of prejudice to respondent, we conclude that the district court abused its discretion by denying appellant’s motion for a time extension based on excusable neglect and by granting respondent’s motion to dismiss.  A finding of excusable neglect is also supported by the fact that appellant’s counsel was solely responsible for the procedural error in this case, and that Minnesota courts are wary of punishing an innocent client for their counsel’s neglect.  See Charon, 419 N.W.2d at 491 (stating that courts are ordinarily loath to punish an innocent client for mistakes that are purely that of counsel). 

            Reversed and remanded.

 

 

 



[1] Compartment syndrome is a swelling of the muscle sheath that can result in muscle death.  It can be an emergency situation.

[2] This suit was initially commenced against the University of Minnesota Physicians, but was later amended to substitute the Twin Cities Spine Center as the employer for Dr. Garvey. 

[3] Appellant agreed to voluntarily dismiss Fairview-University Medical Center and Twin Cities Spine Center. 

[4] Commencement of the lawsuit occurs when the summons is served upon the defendant.  Minn. R. Civ. P. 3.01(a).

[5]  On appeal, respondent challenges the district court’s findings that appellant had a reasonable case on the merits, that appellant acted with due diligence, and that respondent would not suffer substantial prejudice.  Because respondent did not file a notice of review under Minn. R. Civ. App. P. 106, we conclude that the challenges to the district court’s findings raised by respondent are not properly before this court.  See Huttner v. State, 637 N.W.2d 278, 284 n.1 (Minn. App. 2001) (refusing to address challenges to a district court ruling for failure to file a notice of review), review denied (Minn. Nov. 13, 2001).