This opinion will be unpublished and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
Tracy Eilene Stodgell, as Trustee for next of kin
of Dillon Alan Stodgell, deceased, and individually,
City of Warroad, d/b/a Warroad Rescue,
Filed September 16, 2003
Affirmed in part, reversed in part, and remanded; motion granted
Roseau County District Court
File No. C70081
Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401 (for respondent)
Pierre N. Regnier, Marlene S. Garvis, Jardine, Logan & O’Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042 (for appellant)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this medical malpractice action, appellant challenges the district court order denying its motion to dismiss or for summary judgment. Appellant contends that the district court lacked subject-matter jurisdiction because respondent failed to meet the expert-affidavit requirements under Minn. Stat. § 145.682 (2000) and that it was entitled to immunity under the Good Samaritan law, Minn. Stat. § 604A.01 (2002), as well as official immunity. Respondent moved to strike the discussion of the expert-affidavit issue in appellant’s brief. We hold that the order denying the motion to dismiss based on the expert-affidavit issue is not appealable, we decline to extend discretionary review to the issue, and we grant respondent’s motion to strike that portion of appellant’s brief addressing the issue. As to the immunity issues, we affirm in part, reverse in part, and remand.
Respondent Tracy Eilene Stodgell’s son Dillon, who was born on October 10, 1995, underwent a heart transplant shortly after his birth. On October 18, 1997, Dillon became ill, and his mother brought him to the emergency room of Roseau Area Hospital. The physician, who concluded that Dillon was suffering from probable congestive heart failure, pneumonia, and other potential problems, directed the staff to arrange for an ambulance to transfer him to a hospital in Fargo, North Dakota.
Appellant City of Warroad, d/b/a Warroad Rescue (the city), received the request for an ambulance at 11:28 a.m., and it arrived at the hospital at 11:55 a.m. The ambulance, along with its attendants, left the hospital at 12:30 p.m., transporting Dillon on a non-emergency basis. Another patient, who had a broken leg, was being transported in the same ambulance. A registered nurse, who was certified in advanced cardiac life support and was a neonatal advanced life support instructor, accompanied them. En route to Fargo, the ambulance delivered the other patient to a Grand Forks hospital.
After leaving Grand Forks and before arriving at Fargo, Dillon suffered a probable cardiac arrest in the ambulance, requiring emergency treatment. He arrived at the Fargo hospital at 3:40 p.m., suffered a cardiac arrest at 8:39 p.m., and was pronounced dead at 9:20 p.m., having suffered severe acute heart rejection.
Stodgell brought a medical malpractice action against several medical-care providers, including the city. Specifically, Stodgell alleges that the city’s ambulance attendants were negligent as follows: (1) in failing to transport Dillon as an emergency, rather than a non-emergency, patient; (2) in transporting another adult patient at the same time that Dillon was transported; (3) in failing to have adequate medical supplies in the ambulance; (4) in failing to consult with physicians in Grand Forks, North Dakota; (5) in failing to provide medical care to Dillon in transit; and (6) in failing to medicate, intubate, and ventilate Dillon during his transport to the Fargo hospital.
The city moved for summary judgment on the grounds that it was immune from liability under Minnesota’s Good Samaritan law, Minn. Stat. § 604A.01, and the official immunity doctrine. It also moved for dismissal on the ground that Stodgell’s expert affidavits were legally insufficient.
The district court ruled that neither the Good Samaritan law nor official immunity provided immunity to the city. It also determined that respondent’s expert affidavits were determined to be legally sufficient in an earlier appeal. This appeal followed. We issued an order questioning whether we had jurisdiction over the expert-affidavit issue, and Stodgell moved to strike the portion of the city’s brief addressing that issue.
D E C I S I O N
We first address whether that portion of the order ruling on the expert-affidavit issue is immediately appealable. An appellate court considers jurisdictional issues as a matter of law. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn. 2000).
An order denying a motion to dismiss for lack of subject-matter jurisdiction is immediately appealable. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn. 1995). The city argues that the denial of its motion for summary judgment or dismissal based on the insufficiency of the expert affidavits is immediately appealable because the failure to provide sufficient affidavits deprives the district court of subject-matter jurisdiction.
As a preliminary matter, we note that the city did not raise the issue of subject-matter jurisdiction before the district court, and the district court did not address that issue in its order. Rather, the district court denied the motion on the ground that, in an earlier appeal, Stodgell’s expert affidavits were determined to be sufficient to survive dismissal. See Stodgell v. Erickson, No. C3-01-492 (Minn. App. Aug. 28, 2001), review denied (Minn. Nov. 13, 2001) (Stodgell I). Given our opinion in Stodgell I and viewing the remainder of the evidence in the light most favorable to Stodgell, the district court determined that Stodgell has met the burden of establishing a prima facie case.
Generally, an issue not raised before and decided by the district court may not be raised for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The lack of subject-matter jurisdiction, however, may be raised at any time, including for the first time on appeal. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31, 1995). “[I]t is blackletter law that subject matter jurisdiction may not be waived.” Marzitelli v. City of Little Canada, 582 N.W.2d 904, 907 (Minn. 1998) (footnote omitted). Thus, if the expert-affidavit issue raises a question of subject-matter jurisdiction, the city may properly raise this issue for the first time on appeal.
The crucial issue, then, is whether the expert-affidavit issue raises a subject-matter-jurisdiction claim. The law requires a plaintiff who brings a medical malpractice action to 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) (2000). 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). If a party fails to comply with these requirements within 60 days after they are demanded, upon motion from the opposing party, “mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case” will result. Minn. Stat. § 145.682, subd. 6 (2000); Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577-78 (Minn. 1999). The statute does not, however, authorize the district court to dismiss the claim on its own motion.
In contrast, subject-matter jurisdiction may not be waived. Marzitelli, 582 N.W.2d at 907. Because Minn. Stat. § 145.682, subd. 6, requires a motion to dismiss for failure to comply with the expert-affidavit requirement and does not authorize the district court to dismiss on its own motion, the statute does not create a subject-matter jurisdiction limitation. See Cochrane, 529 N.W.2d at 433 (holding that capacity to sue differs from subject-matter jurisdiction and standing because, while those may be challenged at any time, the right to challenge capacity to sue is waived if not timely asserted).
In addition, we note that we apply different standards of review to subject-matter jurisdiction and the expert-affidavit requirement. We review the issue of jurisdiction de novo without deferring to the district court’s decision. Handicraft Block, 611 N.W.2d at 19. In contrast, we consider a challenge to the district court’s dismissal of a claim pursuant to Minn. Stat. § 145.682 under an abuse-of-discretion standard. Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn. 2000).
In support of its argument that the expert-affidavit requirement is jurisdictional, however, the city cites caselaw referring to section 145.682 as having a “jurisdictional component.” See, e.g., Oslund v. United States, 701 F. Supp. 710, 714 (D. Minn. 1988). As discussed above, section 145.682 does not create a true subject-matter jurisdiction requirement because the statute only provides for dismissal if defendant brings a motion and does not permit the district court to dismiss on its own motion. Further, we note that the Minnesota Supreme Court recently ruled on the dismissal requirement under section 145.682, and its ruling did not frame the issue as one involving subject-matter jurisdiction. See Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 426 (Minn. 2002). Because subject-matter jurisdiction is so fundamental, we deduce that the supreme court would have discussed this issue if the alleged failure to provide adequate expert affidavits constituted a subject-matter jurisdiction defect.
Even if the denial of the city’s motion to dismiss or for summary judgment under Minn. Stat. § 145.682, subd. 6, is not appealable as of right, this court could extend discretionary review because the city already has an interlocutory appeal as of right from the denial of its immunity-based motion for summary judgment or dismissal. See Minn. R. Civ. App. P. 103.04 (authorizing appellate court to review any other matter as the interests of justice may require), 105.01 (allowing court of appeals to accept an appeal from an order not otherwise appealable except an order made during trial). Review should not be extended to additional issues in immunity appeals, however, unless those issues are “inextricably intertwined” with the immunity issues. Swint v. Chambers County Comm’n, 514 U.S. 35, 50-51, 115 S. Ct. 1203, 1212 (1995). Here, the immunity issues are distinct from the expert-affidavit issues, and we decline to extend discretionary review to the latter. We, therefore, strike that part of the city’s brief pertaining to the expert-affidavit issue as not properly before us.
We next address whether the city is entitled to immunity under the Good Samaritan law, Minn. Stat. § 604A.01 (2002). “The application of immunity is a question of law, which the court reviews de novo.” Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). The city’s immunity, if any, is vicarious official immunity based on the immunity of the ambulance attendants. See Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992) (addressing vicarious official immunity). The party asserting immunity has the burden of showing that it is entitled to the immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).
“Minnesota’s Good Samaritan law has two main components.” Swenson v. Waseca Mut. Ins. Co., 653 N.W.2d 794, 797 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003). First, the statute imposes the duty of one present at the scene of an emergency to assist. Id.; Minn. Stat. § 604A.01, subd. 1. Second, one who provides such assistance is given immunity from liability. Swenson, 653 N.W.2d at 797; Minn. Stat. § 604A.01, subd. 2(a). The law specifically applies to volunteer ambulance attendants. Minn. Stat. § 604A.01, subd. 2(c).
The city argues that the Good Samaritan law provides immunity to its ambulance attendants because, during the act of transporting Dillon from one hospital to another, Dillon had an unanticipated, life-threatening emergency and the ambulance attendants assisted the child with the emergency. The district court ruled that the Good Samaritan law does not apply because the ambulance attendants were not providing emergency care at the scene of the emergency; rather, they were transporting Dillon from one medical facility to another.
First, we address whether the immunity applies to the facts arising when Dillon’s mother brought him to the hospital and the emergency-room doctor ordered Dillon’s transfer by ambulance to a North Dakota hospital. While the city focuses on the emergency that occurred mid-transport, we must clarify the specific acts to which immunity applies. The “scene of an emergency” is defined as “an area outside the confines of a hospital or other institution that has hospital facilities” or the offices of healing arts personnel. Id., subd. 2(b). Consequently, Dillon’s treatment at the hospital’s emergency room is not subject to immunity under the Good Samaritan law. Further, the record in its current state does not demonstrate that an emergency existed before the probable cardiac arrest that occurred while in transit. Accordingly, the city has not met its burden of establishing Good Samaritan immunity as to the events prior to Dillon’s probable cardiac arrest en route.
We next address whether, as the city asserts, Good Samaritan immunity applies to the events occurring while transporting Dillon in the ambulance from Grand Forks to Fargo, the period in transit when his probable cardiac arrest occurred. The city cites the fact that, after dropping the other patient off at Grand Forks and before arriving at Fargo, Dillon vomited and then began having seizures. Dillon was given oxygen, and medical personnel performed CPR on him. The city reasons that this was an emergency under the Good Samaritan law, and the actions the ambulance attendants took in caring for Dillon in response to this emergency were immunized.
In support of their arguments, both parties cite Swenson, in which we held that “transportation of an injured person by non-emergency personnel is a protected activity under the immunity provisions of the Good Samaritan law.” 653 N.W.2d at 799. But there is no dispute that the law applies while in transit. Rather, the determinative issue is whether the rescue unit faced “the statutorily required emergency.” Id. In Swenson, the plaintiff argued that, because the Good Samaritan planned to first drive the injured girl to her house and then to pick up the rest of her party to go to the hospital, and because the girl’s injury was not life threatening, an emergency did not exist and the situation did not come within the Good Samaritan law. Id. We held that “[c]oming upon a roadside personal-injury-accident scene is the epitome of an emergency.” Id. Further, we held that the injury did not need to be life threatening for immunity to exist. Id. “The only requirement is that a person render assistance at the scene of an emergency.” Id. at 800.
Although it is undisputed that the transport from one medical facility to the other began as a non-emergency transport, once Dillon went into probable cardiac arrest, the volunteer ambulance attendants were confronted with an emergency. From this point forward, the ambulance became “the scene of an emergency” within the meaning of the Good Samaritan law.
Stodgell also asserts that the Good Samaritan law does not apply because the ambulance attendants had a pre-existing duty to the child. Good Samaritan laws are “aimed at inducing voluntary acts by those who do not have a pre-existing duty.” Tiedeman v. Morgan, 435 N.W.2d 86, 89 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989). The Good Samaritan law, however, specifically applies to volunteer ambulance attendants who encounter an emergency situation. Minn. Stat. § 604A.01, subd. 2(c). Consequently, the ambulance attendants’ actions after the emergency occurred are immunized under the Good Samaritan law.
The city also contends that the actions of the ambulance attendants were protected by official immunity. Whether official immunity applies is a question of law, which we review de novo. Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).
Official immunity protects public officials “from the fear of personal liability that might deter independent action.” Janklow v. Minn. Bd. of Examiners, 552 N.W.2d 711, 715 (Minn. 1996) (quotation omitted). “Official immunity applies when the official’s conduct involves the exercise of judgment or discretion,” but it does not protect ministerial acts or malicious conduct. Kari, 582 N.W.2d at 923. Generally, if official immunity applies to the employee, vicarious official immunity will apply to the municipal employee. Pletan, 494 N.W.2d at 42 (Minn. 1992).
“A discretionary act requires the exercise of individual judgment in carrying out the officials’ duties.” Kari, 582 N.W.2d at 923. For example, official immunity applies to paramedics who are driving emergency medical vehicles because “absent malice, drivers of vehicles engaged in emergency missions of public safety should not be subject to second-guessing in the operation of their vehicles.” Id. at 924.
The city contends that the actions by the ambulance attendants were discretionary, because, in treating Dillon, they had to consider and balance various factors, using their judgment and discretion. Consequently, it asserts that they were protected by official immunity. Stodgell does not dispute that the acts by the ambulance attendants were discretionary but contends that they were acts of medical discretion not subject to immunity. See Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997).
In Terwilliger, the Minnesota Supreme Court addressed whether the Hennepin County Mental Health Center and its employees, including a psychiatrist, were entitled to official immunity for their alleged negligence in treating a depressed patient who later committed suicide. Id. at 910. The supreme court ruled that the employees’ decisions regarding treatment of the mentally ill, “no matter how difficult and no matter how much professional judgment is required” did not constitute the kind of discretion protected by immunity. Id. at 913.
[The decisions] do not involve the discretion protected by official immunity; they only implement Hennepin County’s established public policy of providing treatment for its mentally ill citizens. And unlike the [police officer’s] split-second decision whether to engage in a high-speed chase, [the psychiatrist] and the other professionals involved based their decisions not only on what they observed of [the patient] but also on the patient’s medical history and on consultations with [him].
Id. (citations omitted). Noting that the decisions by the county’s mental health employees were “based on the same elements and subject to the same risks” as treatment decisions by private practitioners, the supreme court concluded that “[s]tretching the scope of official immunity to this case would threaten to erect a shield against malpractice liability that is unavailable to private practitioners.” Id.
The city attempts to distinguish Terwilliger, arguing that the personnel there were guided by the county policy of providing mental health services, while the ambulance attendants had no statutes, rules, or regulations dictating specific actions. But Terwilliger does not rely on any specific statute or rule. It refers only to “a declared policy of the mental health center to provide treatment for ill persons.” Id. The city also describes in detail the ways in which the ambulance attendants had to consider and balance various factors, using their judgment and discretion in transporting and treating Dillon. That the ambulance attendants exercised discretion, however, is not in dispute. Rather, the critical distinction here is that the ambulance attendants were exercising their medical discretion, which is not subject to official immunity despite their municipal employment. The district court did not err in determining that official immunity does not apply to acts involving medical discretion by the ambulance attendants.
We, therefore, remand for further proceedings to determine the city’s liability, if any, for its ambulance attendants’ actions occurring prior to the existence of the medical emergency.
Affirmed in part, reversed in part, and remanded; motion to strike granted.
 Minn. Stat. § 145.682 was amended in 2002, but the amendment is only effective for causes of action commenced on or after May 23, 2002, and the amended statute “still mandates dismissal” upon motion “if the affidavit fails to disclose the required information.” Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 422 n.1 (Minn. 2002) (citing 2002 Minn. Laws ch. 403, § 1).
 While the statute has been amended several times since the date of this incident, these changes are not relevant to this decision. See 2001 Minn. Laws ch. 107, § 1 (amending Minn. Stat. § 604A.01, subd. 2(e)); 1998 Minn. Laws ch. 329, § 1 (adding Minn. Stat. § 604A.01, subd. 2(e)).