This opinion will be unpublished and

may not be cited except as provided by

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







Rebecca Klanderud-Overbaugh, as Trustee for the Heirs and

Next of Kin of Laura Klanderud, Deceased, et al.,





Unity Radiation Therapy Center, Inc., et al.,



Filed May 18, 2004

Reversed and remanded

Forsberg, Judge*


Hennepin County District Court

File No. WD 01 017457



Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., 1850 W. Wayzata Boulevard, P.O. Box 39, Long Lake, MN  55356-0039 (for appellant)


Rebecca Egge Moos, Charles E. Lundberg, Anne C. Towey, Bassford Remele, P.A., Suite 3800, 33 South Sixth Street, Minneapolis, MN 55402-3787 (for respondents)


            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


In this medical malpractice action, the district court granted summary judgment to respondents, holding that appellant had not submitted a timely expert affidavit that met the standards of Minn. Stat. § 145.682, subd. 4 (2002).  Appellant argues (a) that the affidavit provided by her expert clearly provides the requisite information to withstand summary judgment or dismissal under Minn. Stat. § 145.682; (b) to the extent the district court considered the expert’s qualifications in granting summary judgment, the district court abused its discretion in determining appellant’s expert was unqualified; and (c) the court did not abuse its discretion in accepting a later expert affidavit when the requirements of Minn. Stat. § 145.682 have already been fulfilled.  Because the first affidavit presented by appellant fulfills the requirements of Minn. Stat. § 145.682, and because her expert was clearly qualified to render an opinion on the subject matter for which the affidavit was submitted, we reverse and remand.


As part of her treatment for breast cancer, Laura Klanderud received radiation therapy at respondent Unity Radiation Therapy Center (Unity) from September 29, 1997 to November 6, 1997.  She received treatment in two areas: on the left side of her lower neck and left upper shoulder, and on the left side of her chest wall and left breast mound.  The therapy was administered under the supervision of respondent Dr. Jeffrey Herman. 

Shortly after her treatment ended, Klanderud began experiencing increased pain in the left side of her chest.  The pain derived from what appeared to be second- and third-degree thermal burns on her chest.  In reality, however, the injury was caused by radiation, and tissue that at first appeared healthy deteriorated over the months and years that followed.  A large portion of her left chest eventually became necrotic and infected.  Klanderud died on September 2, 2000, the death certificate listing a “severe chest wall wound from radiation necrosis” as the cause of death.

Appellant Rebecca Klanderud-Overbaugh, trustee for Klanderud’s heirs and next of kin, and as personal representative of Klanderud’s estate, commenced this medical malpractice action on October 19, 2001.  She alleged that Klanderud’s death was caused by the negligence of Unity and Dr. Herman, specifically asserting that (1) respondents’ negligence and recklessness resulted in Klanderud’s death; (2) respondents failed to take measures that a facility in good standing would take under similar circumstances to prevent the continued deterioration of Klanderud’s condition; and (3) respondents failed to adequately advise Klanderud or other treating physicians of the dangers of her condition, so that she could make informed decisions about her treatment.

In support of her assertions, appellant solicited the expert testimony of Dr. Philip Littman, a board-certified radiation oncologist with 30 years of experience who was previously director of a radiation clinic in Wisconsin.  Dr. Littman, in an affidavit, reiterated and confirmed the coroner’s opinion that Klanderud’s death was ultimately caused by her exposure to radiation.  He noted, however, that he was unable to identify any specific conduct during the administration of the radiation that would fall below accepted and applicable standards of care. 

Despite his inability to identify negligent conduct during the radiation treatment, Dr. Littman asserted that conduct by respondents after the treatment failed to adhere “to applicable standards of care associated with radiation injury and complications.”  Specifically, Dr. Littman pointed to respondents’ overall failure to investigate the cause or extent of over-exposure, or to apprise either Klanderud or other treating physicians of her condition, despite their awareness of (1) Klanderud’s admission to the emergency room for radiation-related injuries five days after treatment ended, (2) Klanderud’s consultation with a Unity employee who stated he had “not seen this extensive of a skin reaction in somebody who does not have an underlying collagen vascular disease,” and (3) her inability to recover several months after treatment ceased (where most patients fully recover within two months), as “substantial causative factors in her unfortunate suffering and ghastly expiration.” 

Upon receiving Dr. Littman’s affidavit, respondents moved for summary judgment or dismissal pursuant to Minn. Stat. § 145.682, subd. 6 (2000), alleging that the affidavit failed to meet the statutory requirements for expert affidavits.  They argued that the affidavit failed to establish a standard of care from which respondents deviated, and further that it failed to establish a chain of causation between the alleged deviation and Klanderud’s death.

The district court denied this initial motion, but stated “[w]hether Dr. Littman’s affidavit clearly states the standard of care may be arguable.”  It therefore allowed respondents to depose Dr. Littman at appellant’s expense, as suggested for “borderline” affidavits under Sorenson v. St. Paul Ramsey Med. Ctr.,457 N.W.2d 188, 193 (Minn. 1990). 

Respondents then conducted a deposition of Dr. Littman, and armed with the information gleaned therefrom, renewed their motion for summary judgment or dismissal.  They again asserted that Dr. Littman’s affidavit failed to comport with the requirements of Minn. Stat. § 145.682.  Appellant opposed the motion, and also filed a motion to admit the affidavit of a plastic surgeon, Dr. David Larson. 

After a hearing on the matter, the district court granted summary judgment.  It determined that “a showing that the treating physician was negligent and that the negligence caused the death of [Klanderud] has not been established.” Further, citing Cornfeldt v. Tongen,262 N.W.2d 684, 692 (Minn. 1977), the court appears to infer that appellant’s expert lacked sufficient experience to testify.  However, without providing reasons for doing so, it granted appellant’s motion to admit the affidavit of Dr. Larson nearly a year after the original deadline under Minn. Stat. § 145.682 had passed.  Appellant now appeals, and respondents have filed a conditional notice of review.[1]


All parties here assert that this case should be reviewed under an abuse of discretion standard.  We disagree.  Though dismissals of claims pursuant to Minn. Stat. § 145.682 are reviewed under this standard, Teffeteller v. Univ. of Minn.,645 N.W.2d 420, 426 (Minn. 2002), summary judgments are reviewed de novo, and in the light most favorable to the party against whom judgment is granted.  Ingram v. Syverson, 674 N.W.2d 233, 235 (Minn. App. 2004).  Here, the district court granted summary judgment, rather than dismissing under section 145.682.  As such, the district court’s determination is subject to de novo review.  Id.  Statutory construction is also a question of law subject to de novo review.  Stroud v. Hennepin County Med. Ctr.,556 N.W.2d 552, 555 (Minn. 1996).


Sufficiency of affidavit under Minn. Stat. § 145.682

Appellant first argues that the trial court erred in entering summary judgment, asserting that the affidavit presented by Dr. Littman satisfied the statutory requirements for expert testimony in a medical malpractice action.  She argues that the court, in granting summary judgment, has interpreted Minn. Stat. § 145.682 (2002) far too narrowly, and has required her to prove her entire case at this pre-trial stage.  Though the supreme court has continually placed a high burden on the sufficiency of plaintiff affidavits, we agree that the affidavit presented here is sufficient to overcome this substantial burden.

In a medical malpractice case in which expert testimony is needed to establish a prima facie case, the plaintiff must satisfy two requirements provided in section 145.682.  First, the plaintiff must serve the defendant with the summons and complaint accompanied by an attorney affidavit stating that the facts of the case have been reviewed with an expert who believes that the defendant deviated from the applicable standard of care, and that those deviations caused the plaintiff’s injuries.  Minn. Stat. § 145.682, subd. 3(a). This affidavit must also contain sufficient expert qualifications to provide a reasonable expectation that the expert’s opinions could be admissible at trial.  Id.

Within 180 days after commencement of the suit, the plaintiff must serve upon the defendant a second affidavit, this time setting forth the identity of each expert witness expected to be called at trial to testify with respect to 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.  Id., subd. 4. Failure to comply with these requirements results, upon motion, in mandatory dismissal of each cause of action requiring expert testimony to establish a prima facie case.  Id., subd. 6.

Minnesota caselaw has made clear that, in order to satisfy the requirements of the second affidavit, plaintiff must provide a “meaningful disclosure” of the expected testimony.  Teffeteller,645 N.W.2d at 431.  This disclosure must include (1) specific details concerning the expert’s testimony, including the applicable standard of care; (2) the acts or omissions which the plaintiff alleges resulted in a violation of the standard of care; and (3) an outline of the chain of causation between the violation of the standard of care and the plaintiff’s damages.  Sorenson v. St. Paul Ramsey Med. Ctr.,457 N.W.2d 188, 193 (Minn. 1990).

Here, the district court determined that Dr. Littman’s affidavit failed to meet section 145.682’s requirement “to establish a causal link between the treatment provided by the doctor and the injury to the plaintiff, a showing that the treating physician was negligent and that the negligence caused the death of the plaintiff . . . .”  We cannot agree.  Dr. Littman’s affidavit asserts that a treating radiation oncologist, upon learning of a possible radiation-induced injury, would participate in an investigation of the cause and extent of the injury, would report their findings to the patient, would assist all treating medical providers with the best information available based upon their findings, and carefully explain to the patient the possible treatment options.  Dr. Littman then accounted in detail how Unity employees’ inaction under the circumstances deviated from those standards.  He noted that, but for respondents’ failure to adequately investigate and manage Klanderud’s injuries, her exposure to radiation would not have been fatal.

This affidavit thus provides far more than the “general disclosures” that the statute was designed to prevent.  See Lindberg v. Health Partners,599 N.W.2d 572, 578 (Minn. 1999).  Instead, it provides a detailed account of why Klanderud’s condition should have raised concern among Unity employees, and how their unique knowledge and experience would have provided necessary information that would have changed the outcome in this case.  Unlike the affidavits addressed in cases by the supreme court, this affidavit contains more than “broad, conclusory statements regarding causation.”  See Teffeteller,645 N.W.2d at 429.  It instead provides a laundry list of asserted failures, and how those failures “amounted to substantial causative factors in her unfortunate suffering and ghastly expiration.” 

Respondents raise a number of issues that attempt to cast doubt on Dr. Littman’s qualifications and the foundation behind his opinions.  A careful examination into each of these arguments, however, reveals that Dr. Littman’s qualifications are proper and well-founded for the testimony appellant wishes to introduce.  Summary judgment, therefore, is inappropriate.  

A.        Qualifications

Respondents argue that Dr. Littman’s affidavit should be discounted because he has no prior experience with the specific equipment that was used in treating Klanderud,  and lacked expertise in the medical conditions involved here. They argue, therefore, that he is unqualified to testify.

Respondents’ assertions notwithstanding, the issue here is not whether a machine malfunction was the direct cause of Klanderud’s death, but rather whether Unity’s failure to diagnose, inform, and assist in treating Klanderud contributed to her death.  As a radiation oncologist with more than 30 years experience, Dr. Littman was clearly in a position to testify as to the applicable standard of care, and as to how respondents under these circumstances strayed from it.

As far as Dr. Littman’s experience with similar medical conditions, he stated in deposition that he had provided treatment to hundreds of breast cancer patients, and that he had participated “more than probably most radiotherapists” in treating complications from radiation therapy because of the number of years he had practiced.  This specifically included one patient who had a chest wall ulceration similar to the injury that occurred here. 

Plaintiffs need not present the testimony of the person best qualified to give an opinion.  Christy v. Saliterman, 288 Minn. 144, 167, 179 N.W.2d 288, 303 (1970).  An expert with sufficient “occupational experience” in the relevant field, together with the necessary training, is generally a suitable expert.  Cornfeldt v. Tongen,262 N.W.2d 684, 692 (Minn. 1977).  With decades of experience in radiation oncology, including experience with radiation complications, we conclude that Dr. Littman is more than sufficiently qualified to testify as to the standard of care and Unity’s deviation therefrom.[2] 

B.        Foundation

Respondents exert great effort in attacking the factual basis behind Dr. Littman’s affidavit, citing to Dr. Littman’s unsupported contention in his later deposition that Klanderud’s death was caused by over-exposure from machine malfunction.  Again, respondents stray from Dr. Littman’s actual opinion:  that Unity’s failure to diagnose, inform, and treat led to insufficient treatment by other healthcare providers, improper patient treatment choices, and ultimately to death.  Though his opinion that the burns were caused by machine malfunction has no support in the record, his opinion that the effects of the burns were preventable and treatable finds support from the medical records, and from his expert interpretation of them.  See Ingram, 674 N.W.2d at 236 (holding that a doctor’s expert testimony derives from an interpretation of medical records after years of “education, training, and experience as a practitioner”).

We reiterate, as we did in Demgen v. Fairview Hosp.,that section 145.682 was not meant to require plaintiffs to try their entire cases in pre-trial affidavits.  621 N.W.2d 259, 265 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  Nor does the statute require every link in the chain of causation to be explicitly described and explained.  See Sorenson, 457 N.W.2d at 193.  On the contrary, the supreme court went to great lengths in Sorenson to make it clear that the affidavit requirement is not a discovery device but, rather, a means of establishing the basic merit of a cause of action with the purpose of avoiding frivolous lawsuits.  See id.

We find that the “basic merit” of this case has been established: appellant contends, and Dr. Littman corroborates, that respondents failed to investigate, treat, and inform.  Section 145.682 does not require the plaintiffs to delve into the origins of the burns at this stage in the case, since appellant asserts that respondents’ inaction after the burns occurred was the cause of Klanderud’s death.[3]

Further, we are not persuaded at this early stage by respondents’ argument that the injury would have occurred regardless of respondents’ warnings.  Though Dr. Littman conceded that he is not a plastic surgeon, and that a plastic surgeon may not have adhered to recommendations made by a radiation oncologist, Minn. Stat. § 145.682, subd. 4(a), does not require an expert affidavit to anticipate and refute adverse opinions and somehow address them.  Demgen,621 N.W.2d at 266.  Here, Dr. Littman contends that respondents’ failure to inform led to an uninformed and insufficient surgical treatment by Dr. Gervais, the treating plastic surgeon.  Were Dr. Gervais to have opted not to follow the recommendations after full disclosure of Klanderud’s condition, we would likely see the break in the chain of causation that respondents so desperately seek.  However, because respondents only offer the possibility that Dr. Gervais would follow the same course of action notwithstanding the full disclosure, that “break” has not yet occurred.

Finally, respondents point to Klanderud’s repeated objections to recommended treatment as an indication that, even if respondents had followed the allegedly proper course of action, Klanderud would not have been receptive to their recommendations and would therefore likely not have survived.  This too, they argue, severs the chain of causation.  However, these objections were made without her full knowledge of her own condition.  The Minnesota Supreme Court has been hesitant to reconstruct the “hypothesized state of mind” of a victim in cases involving informed consent.  E.g., Cornfeldt,262 N.W.2d at 701.  Instead, the court has adopted the “objective test of proximate cause.”  Id.  That is, “[w]hether a reasonable person in the plaintiff’s position would have refused the treatment had he been informed of the undisclosed risk.”  Id.  Since Klanderud’s uninformed objections have little bearing in an informed consent argument, this argument must be rejected.


Affidavit of Dr. Larson

Both appellant and respondents make arguments concerning the propriety of the district court’s admission of Dr. Larson’s expert affidavit nearly a year after the deadline for section 145.682 had passed.  Since Dr. Littman’s first affidavit was sufficient under section 145.682, we need not address the timeliness of Dr. Larson’s affidavit.  The legislature enacted section 145.682 to eliminate frivolous cases.  Sorenson,457 N.W.2d at 191.  As we have determined, solely based on Dr. Littman’s first affidavit, that this case is not “frivolous,” the evidentiary hurdle of section 145.682 has already been overcome, and the statute need not be re-addressed in considering this subsequent affidavit.

            Though the supreme court has set a high standard for “meaningful disclosures” under Minn. Stat. § 145.682, plaintiffs are still not required to prove every element of their claims in order to satisfy the statute’s requirements.  Because Dr. Littman’s affidavit provides (1) details concerning the experts’ expected testimony, including the applicable standard of care; (2) an assertion of the acts or omissions that resulted in a violation of the standard of care; and (3) a chain of causation between the violation of the standard of care and the plaintiff’s damages, we reverse the district court’s grant of summary judgment to respondents, and remand for further proceedings.

            Reversed and remanded. 

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

[1] The notice of review is conditional because of the questionable language of the district court order.  It is not clear whether the district court considered Dr. Larson’s affidavit before determining that appellant had failed “to submit an affidavit that meets the standard of M.S.A. § 145.682, subd. 4.”  To the extent that the court considered Dr. Larson’s affidavit in making this determination, respondents argue that the affidavit was untimely, and the court’s consideration was an abuse of discretion.  

[2] We recognize that we are to apply “a very deferential standard” to the district court when reviewing a determination as to expert qualification.  Gross v. Victoria Station Farms, Inc.,578 N.W.2d 757, 761 (Minn. 1998).  The record does not make clear, however, whether the district court here considered Dr. Littman’s qualifications at all before granting summary judgment.  Instead, the district court order makes a sweeping declaration that experts testifying in medical malpractice cases “must have sufficient scientific and practical experience with the subject matter about which he will testify,” without applying this statement to the facts of this case. The record makes clear, however, that Dr. Littman’s background renders him amply qualified to testify as an expert here, and any contrary determination the district court might have made would be erroneous and contrary to the evidence presented.

[3] We are convinced that Dr. Littman’s opinion that over-radiation, rather than an idiosyncratic reaction, caused Klanderud’s condition has created a genuine issue of material fact sufficient to withstand summary judgment.  Dr. Littman’s opinion is based on Klanderud’s reaction in only one of the two areas treated with radiation.  Based on his experience and expertise, he contends that an idiosyncratic reaction would have occurred in both areas.