This opinion will be unpublished and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

A03-2056

 

Gary Boyce, et al.,

Appellants,

 

vs.

 

J. Bryan Warren, M.D., et al.,

Respondents.

 

Filed August 24, 2004

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. C2-03-7532

 

Daniel J. Bresnahan, 310 Fourth Avenue South, Suite 7000, Minneapolis, MN 55415-1029 (for appellants)

 

Terence O’Loughlin, Jeremy J. Sundheim, Geraghty O’Loughlin & Kenney, P.A., 1400 Ecolab University Center, 386 North Wabasha Street, St. Paul, MN 55102 (for respondents)

 

            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellants challenge the district court’s dismissal of their medical-malpractice lawsuit pursuant to Minn. Stat. § 145.682 (2002), based on deficiencies in their expert’s affidavit.  Because we conclude that the district court acted within its discretion in granting respondents’ motion to dismiss on the grounds that the affidavit failed to (1) sufficiently set forth the standard of care, (2) outline the acts or omissions that violated the standard of care, and (3) outline the chain of causation between the violation of the standard of care and appellant’s damages, we affirm.

FACTS

            During the period between October 1997 and January 1999, appellant Gary Boyce was treated for chronic pulmonary emboli by respondent J. Bryan Warren, M.D., a physician employed by respondent Group Health Plan, Inc.  In October 1997, after an angiogram failed to show any new pulmonary emboli, Dr. Warren prescribed anticoagulants in an attempt to prevent new pulmonary emboli from forming.  Nonetheless, appellant later developed severe chronic hypertension from chronic pulmonary emboli, which necessitated pulmonary thrombectomy surgery in July 2000.   

            On January 8, 2003, appellant and his wife commenced suit against respondents for medical malpractice, claiming that they failed to comply with the applicable standards of care by negligently evaluating, treating, and managing appellant’s condition.  Along with their complaint, appellants submitted the expert affidavit of Stephen Gryzan, M.D., which simply stated that “the physicians caring for [appellant] at Regions Hospital failed to exercise the standard of care necessary in their treatment of [appellant] and that breach of that duty of care permanently injured [appellant].” 

            In July 2003, appellants served respondents with a second affidavit, in which Dr. Gryzan opined that

an IVC filter should have been placed in [appellant’s] body to prevent further complications from deep vein thrombosis and pulmonary emboli. . . . [T]he failure to insert the IVC filter . . . fell below the applicable standard of care required of Dr. J. Bryan Warren and that as a result of the deviation from the applicable standard of care . . . [appellant] develop[ed] severe chronic hypertension from chronic pulmonary emboli which necessitated a pulmonary thrombectomy that otherwise would not have had to have been performed. 

 

Dr. Gryzan also stated that appellant “suffered personal injuries, unnecessary surgeries, and probable life long complications from the surgery and the misdiagnosis and mistreatment” by respondents and that appellant “will be permanently disabled as a result.”

            Respondents moved to dismiss in July 2003, pursuant to Minn. Stat. § 145.682 (2002), arguing that Dr. Gryzan had failed to (1) state the applicable standard of care, (2) identify specific negligent acts or omissions by Dr. Warren, and (3) outline a chain of causation connecting specific acts or omissions to appellant’s injuries.  In support of their motion, respondents submitted the expert affidavit of Alain Broccard, M.D.  Dr. Broccard challenged Dr. Gryzan’s conclusion that placing an IVC filter in appellant between October 1997 and January 1999 would have prevented him from developing chronic hypertension, stating:  

[Appellant’s] medical records indicate: (a) that as of October 16, 1997 [appellant] had already developed severe pulmonary hypertension caused by chronic pulmonary embolism; and (b) that between October 16, 1997 and January 21, 1999 there is no documented medical evidence of [appellant] having new pulmonary embolism for which he allegedly might need a filter to prevent.

 

Furthermore, as to the standard of care, Dr. Broccard stated:

[T]he well-established and wide-spread standard of care for treatment of patients with thromboembolism such as [appellant’s] is anticoagulant therapy.  This was the treatment provided to [appellant] at St. Paul Ramsey between October 16, 1997 and January 21, 1999.  The use of IVC filters was not, and is not, the standard of care for treating such patients.  The efficacy and safety of using IVC filters to treat such patients is a matter of debate and opinion among physicians specializing in the field.  The only instances in which physicians feel use of IVC filters are indicated are in circumstances in which use of anticoagulant therapy is contraindicated (e.g. the anticoagulants caused the patient to bleed) or documented failure of anticoagulant therapy to prevent recurrent pulmonary embolism.  Neither of these circumstances existed in the case of [appellant] between October 16, 1996 and January 21, 1999.

 

As to causation, Dr. Broccard opined that “there is no reliable medical or scientific evidence establishing that use of an IVC filter between October 16, 1997 and January 21, 1999 would have prevented [appellant’s] severe chronic pulmonary hypertension and need for a pulmonary thromboendarectomy.”

Following a hearing, the district court concluded that Dr. Gryzan’s affidavit did not meet the requirements of Minn. Stat. § 145.682 and the applicable caselaw.  The court reasoned that (1) there was no specific medical or scientific basis for appellants’ claim that insertion of the IVC filter was the applicable standard of care, (2) there was no showing that the filter should have been placed during the period of time in which respondents treated appellant, (3) there was no showing, other than a conclusion, that the filter would have prevented appellant’s pulmonary hypertension, and (4) there was no chain or causal link between respondents’ alleged negligence and appellant’s injuries.  Accordingly, the district court granted respondents’ motion and dismissed appellants’ lawsuit.  This appeal follows. 

D E C I S I O N

I.

 

A district court’s dismissal of a claim pursuant to Minn. Stat. § 145.682 (2002) will be reversed only if this court concludes that the district court abused its discretion.  Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 426 (Minn. 2002). 

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 Minn. Stat. § 145.682, subd. 2.  First, the plaintiff must serve the defendant with the summons and complaint, accompanied by an attorney’s 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.

Second, within 180 days after commencement of the suit, the plaintiff must serve on the defendant a second affidavit, 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.

The second affidavit must contain more than just the facts found in the hospital or clinic record; conclusory statements are insufficient.  Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555-56 (Minn. 1996).  Furthermore, the supreme court has repeatedly held that the affidavit must provide more than a “sneak preview” or “general disclosure” of the expert’s testimony.  Teffeteller, 645 N.W.2d at 430; Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999).  In order to satisfy the requirements of the second affidavit, the plaintiff must minimally 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 that 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). 

With regard to the standard of care, the district court concluded that Dr. Gryzan’s affidavit was insufficient because it

[does] not cite any authority, medical or legal, that would indicate that the standard of care in cases such as [appellant’s] is that an IVC filter must be inserted and that it would be negligence if the treating physician failed to insert an IVC filter as a part of ongoing treatment of chronic pulmonary embolism.

 

Cf. Lindberg, 599 N.W.2d at 578 (concluding that the affidavit was insufficient, in part, because while the expert demonstrated that he was familiar with the standard of care, he failed to “state what it was or how the appellants departed from it” and failed “to recite any facts upon which [he] will rely as a basis for his expert opinion”). 

Appellants argue that the court abused its discretion in reaching this conclusion because they “submitted two affidavits of Dr. Gryzan clearly identifying the standard of care in this case, i.e., patients who continue to suffer chronic pulmonary emboli while being treated solely with anti-coagulate therapy should have an IVC filter placed to prevent further complications.”  In support of this argument, appellants contend that Dr. Gryzan stated:

Patients suffering from chronic emboli that continue despite anti-coagulate therapy need to have an IVC filter placed.  [Respondents] did not do this and this failure caused injury and necessitated a dangerous and unnecessary surgery.

 

            But our review of the record indicates that Dr. Gryzan did not make this statement anywhere in his affidavits.  Nor do the affidavits or the answers to respondents’ interrogatories adequately identify the standard of care in any other terms.[1]  In his first affidavit, Dr. Gryzan made only one conclusory statement – that “the physicians caring for [appellant] . . . failed to exercise the standard of care necessary in their treatment of [appellant] and that breach of that duty of care permanently injured [appellant].”  And while Dr. Gryzan’s second affidavit repeatedly refers to “the applicable standard of care,” it does not identify what that standard is.  Instead, Dr. Gryzan states:

            From October 16, 1997 until January 21, 1999, the patient, [appellant] experienced recurrent deep vein thrombosis and pulmonary emboli.  During this treatment by Dr. Warren, it appears from the medical records that [appellant] was being treated with an adequate anticoagulant therapy.

 

            Dr. Gryzan believes that these findings indicate that an IVC filter should have been placed in [appellant’s] body to prevent further complications from deep vein thrombosis and pulmonary emboli.  Dr. Gryzan feels that the failure to insert the IVC filter . . . fell below the applicable standard of care required of Dr. J. Bryan Warren and that as a result of the deviation from the applicable standard of care . . . [appellant] develop[ed] severe chronic hypertension from chronic pulmonary emboli which necessitated a pulmonary thrombectomy that otherwise would not have had to have been performed.  The pulmonary thrombectomy was an extremely complicated procedure and had a very high mortality.

 

While Dr. Gryzan’s statements may imply that an IVC filter was required because appellant experienced recurrent deep-vein thrombosis and pulmonary emboli despite the anticoagulant therapy, the affidavit nevertheless fails to satisfy the strict requirement in Sorenson that the expert provide “specific details,” 457 N.W.2d at 193, pertaining to the applicable standard of care, which in medical-malpractice cases, is “the standard of care recognized by the medical community.”  Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000).  Dr. Gryzan’s statement that he “believes” an IVC filter should have been placed in this situation is not equal to a statement that the medical community agrees that an IVC filter should have been placed.  Furthermore, while Dr. Broccard, respondent’s rebuttal expert, recognized that “use of IVC filters are indicated . . . [only where there is] documented failure of anticoagulant therapy to prevent recurrent pulmonary embolism,” district courts may not use a defendant’s rebuttal affidavit or outside medical reports to judge the sufficiency of the plaintiff’s expert affidavit.  Demgen v. Fairview Hosp., 621 N.W.2d 259, 266-67 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  Therefore, viewing Dr. Gryzan’s affidavit independently, we agree that Dr. Gryzan’s affidavit does not sufficiently set forth the applicable standard of care in this case. 

            But even if appellants’ expert had properly set forth the standard of care, we conclude that the affidavit failed to adequately describe the acts or omissions that violated the standard of care or the chain of causation between the violation of the standard of care and appellants’ damages. 

On this issue, the district court concluded:

[Appellants] clearly fail to set forth a specific chain of causation between the failure to insert the IVC filter by [respondents] and the cause for [appellant’s] damages.  [Appellants] have failed to show how [respondents’] timely insertion of the filter would have prevented [appellant’s] surgery and ultimate permanent injury, which occurred 18 months after treatment by [respondents] ceased.  The cause of [appellant’s] permanent injury is merely a conclusory statement of [appellants’ attorney] and agreed to by Dr. Gryzan, and not based on the criteria that meets the strict requirements of the statute and case law.

 

We agree.  In Stroud, the supreme court stated that an affidavit is insufficient if it fails to properly outline “the chain of causation between the alleged violation of the standard of care and the claimed damages.”  556 N.W.2d at 556.  The Stroud court specifically took issue with the fact that the expert’s affidavit did not connect the decedent’s “pulmonary embolism to the delay in diagnosing the subarachnoid hemorrhage; rather, [the expert] simply opine[d] that the delay in diagnosis caused a complicated hospital stay.”  Id. (quotations omitted).    

Likewise, here, Dr. Gryzan opines generally that sometime between October 1997 and January 1999, “an IVC filter should have been placed in [appellant’s] body to prevent further complications from deep vein thrombosis and pulmonary emboli” and that the failure to do so resulted in appellant “developing severe chronic hypertension from chronic pulmonary emboli which necessitated a pulmonary thrombectomy that otherwise would not have had to have been performed.”  As in Stroud, these statements are nothing more than “broad, conclusory statements as to causation,” 556 N.W.2d at 556, because Dr. Gryzan fails to explain in any detail how placement of an IVC filter sometime during appellant’s 15-month period of treatment with respondents would have prevented further complications from pulmonary emboli or how placing the filter would have prevented appellant from undergoing surgery in July 2000, approximately 18 months after respondents ceased treating appellant.  As the district court recognized, there is minimally“a gap of 14 to 16 months and [appellant’s] expert failed to fill that gap.”[2]  Consequently, we conclude that the district court did not abuse its discretion in determining that Dr. Gryzan’s affidavit is insufficient under Minn. Stat. § 145.682 and the applicable caselaw. 

II.

Appellants also argue that the district court improperly considered Boyce’s medical records while evaluating the sufficiency of Dr. Gryzan’s affidavit.  Generally, a motion to dismiss should be evaluated on the pleadings, and if matters outside the pleadings are presented to and considered by the district court, the motion shall be treated as a rule 56 summary-judgment motion.  See Minn. R. Civ. P. 12.03.  In the medical-malpractice context, this court has stated that it is improper for a district court to rely on rebuttal affidavits and discovery evidence, such as medical records, when weighing and analyzing the adequacy of expert affidavits under Minn. Stat. § 145.682.  Demgen, 621 N.W.2d at 266-67. 

Here, we agree that the district court may have improperly considered Boyce’s medical records, and possibly respondents’ rebuttal affidavit, in reaching its decision.  The court stated:

            One can only guess as to when the IVC filter should have been inserted.  Should the filter have been inserted prior to [respondents] starting to treat [appellant] because of [his] previous health problems or should it have been inserted at the time of the initial admission on October 16, 1997 when the discharge diagnosis was chronic pulmonary embolus or when there was another diagnosis of chronic pulmonary embolism on November 25, 1998 or should it have been when a diagnosis of an acute viral upper respiratory infection/ possible bronchitis was considered more likely than pulmonary emboli based upon the VQ scan on January 15, 1999?

 

The IVC filter appears to have been placed in [appellant] on October [sic] 11, 2000 following “recent complications from anticoagulant therapy.”  Does recent complaints mean after January 21, 1999 when [respondents] ceased treatment of [appellant] and before April 11, 2000 when the filter was inserted?  This Court has no way of knowing because the causal chain of events is not clear based upon the affidavits submitted.

 

But as demonstrated above, the district court also made numerous other findings supporting its decision that did not rely on material outside Dr. Gryzan’s affidavit, and we conclude that those findings alone are sufficient to uphold the district court’s dismissal of appellants’ suit under Minn. Stat. § 145.682.  Therefore, while we caution the district court against considering outside evidence when deciding a motion to dismiss, we nevertheless conclude that in this case, the court’s statements were merely rhetorical and did not play a key role in the outcome. 

            Affirmed.



[1] In Stroud, the supreme court concluded that while interrogatory answers can satisfy the statute’s disclosure requirements, the answers to the defendant’s interrogatories are insufficient where they simply refer the defendant to the plaintiff’s expert’s affidavit.  556 N.W.2d at 556 n.6.  Here, appellants’ answers to the interrogatories simply refer respondent to “Dr. Gryzan’s narrative report of September 19, 2001, Affidavits of March 29, 2002 and June 27, 2003 and his CV.”  And the statements contained in the September 2001 letter do not differ from those contained in the affidavits.  Therefore, the interrogatories do not assist appellants in satisfying the statute’s disclosure requirements.

[2] Appellants contend that the district court “improperly imposed a standard regarding causation requiring an expert to identify the exact moment the alleged malpractice occurred.”  This is not accurate.  The district court simply followed the caselaw and required appellants to go beyond mere “broad and conclusory statements” to link the alleged violation with the claimed damages.  See Stroud, 556 N.W.2d at 556.