This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Nina G. Gorokhova,
Vladimir A. Barkhudarov,
Frank Irwin Kirshbaum, M.D., et al.,
Filed December 5, 2006
Affirmed as modified
Dakota County District Court
File No. C1-05-8561
Nina G. Gorokhova, Vladimir A. Barkhudarov,
Kathleen M. Loucks, Gislason & Hunter, LLP,
Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
On appeal from the district court’s judgment dismissing their claims without prejudice, appellants allege that (1) the district court failed to comply with rules of court in scheduling respondents’ motions, (2) the district court made incorrect findings of fact, (3) the district court incorrectly characterized the nature of appellants’ claims as medical malpractice, (4) the district court erred in dismissing appellants’ medical-malpractice claims for failure to comply with Minn. Stat. § 145.682, subd. 2(1) (2004), and (5) appellants’ claims have merit. We affirm as modified.
The claims of pro se appellants Nina G. Gorokhova and Vladimir A. Barkhudarov against respondents Frank Irwin Kirshbaum, M.D., and James Hornibrook, Administrator of Fairview Ridges Clinic, arise out of their medical treatment at the clinic during the time frame of December 2003 to April 24, 2004. Appellants assert that Dr. Kirshbaum failed to properly diagnose their conditions; concealed diagnoses from the Social Security Administration; and failed to properly treat their medical symptoms. Additionally, appellants allege that Dr. Kirshbaum made fraudulent entries in their medical records by noting injuries that appellants say did not exist. With respect to Hornibrook, appellants assert that he failed to protect them from the harmful actions of Dr. Kirshbaum and violated their rights as patients by advising them that the clinic would no longer provide services to them.
Following appellants’ initiation of the lawsuit, respondents’ attorney promptly wrote to appellants asking for compliance with Minn. Stat. § 145.682 (2004), requiring an affidavit certifying expert review of the claims of medical malpractice. When appellants failed to provide the requisite affidavit, respondents moved to dismiss the case for failure to state a claim and failure to comply with Minn. Stat. § 145.682, or, in the alternative, for a more definite statement of the claims pursuant to Minn. R. Civ. P. 12.05.
The district court heard the motion to dismiss on November 16, 2005, a date that appellants allege was improperly set by respondents’ attorneys and not by the court. The district court concluded that appellants’ claims “are in essence allegations of medical malpractice,” and therefore, based on appellants’ failure to provide the required affidavit, dismissed the case without prejudice. This appeal follows.
an initial matter, appellants claim that respondents, not the court, improperly
scheduled the November 16, 2005 hearing date on respondents’ motions. The district court issued a scheduling order
in this matter, indicating a trial date of February 15, 2006. The district court has great discretion in
determining the procedural calendar of a case, Rice v. Perl, 320 N.W.2d
407, 412 (
The district court and respondents’ attorney complied with procedural requirements, and the district court acted within its discretion by setting the hearing date.
Appellants challenge the district court’s dismissal of their claims based on their noncompliance with Minn. Stat. § 145.682 (2004), which requires an affidavit of expert review for a medical-malpractice claim, on the ground that their claims are for personal injury, not medical malpractice.
district court determined that appellants’ claims against Dr. Kirshbaum were
based on allegations of medical malpractice, as the claims “related to the
doctor/patient relationship between them.”
order to prove medical malpractice, a plaintiff must establish (1) the
applicable standard of care (2) from which the physician departed (3) causing
the patient’s injuries. McElwain,
447 N.W.2d at 445. Expert testimony is
necessary to establish these elements. Sorenson
Here, the district court found that appellants’ claims concerned medical malpractice. Because this court sustains findings of fact unless clearly erroneous and the record supports the factual findings, we agree that Minn. Stat. § 145.682 applies. Therefore, the statute’s remedy governs disposition of appellants’ claims against Dr. Kirshbaum.
district court dismissed without prejudice appellants’ claims of medical
malpractice against Dr. Kirshbaum based on appellants’ failure to comply with Minn.
Stat. § 145.682, subd. 2(1). Respondents
Respondents are required
to file a notice of review for issues decided adversely.
But “[t]he appellate
courts may reverse, affirm or modify the judgment or order appealed from or
take any other action as the interest of justice may require.”
Factors to be considered
in determining whether to take review of an issue for which no notice of review
was filed include whether the issue is one of first impression, the issue
appears prominently in briefing, the issue was “implicit in” or “closely akin
to” arguments raised at the district court, and the issue does not depend upon
new or controverted facts. Watson v.
United Servs. Auto. Ass’n, 566 N.W. 2d 683, 688 (
Under the terms of the
statute, the failure to provide the affidavit within 60 days of its demand,
upon the motion of the defendant, 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(a). In cases
that justify dismissal, reviewing courts have been “firm” in requiring
noncompliance be sanctioned with dismissal with prejudice. Broehm
v. Mayo Clinic
Appellants claim that respondent Hornibrook, the clinic administrator, “supported abusive behavior” of respondent Dr. Kirshbaum, and told appellants to “never come back,” thus causing “shock[ ], . . . deep depression, [and feeling] insulted.” Furthermore, Hornibrook’s follow-up letter confirming denial of future services, appellants claim, “is a violation of [c]ivil and [p]atient [r]ights and added more abuse.”
the medical-malpractice statute, a health care provider includes a “hospital,
including all persons or entities providing health care,” Minn. Stat.
§ 145.682, subd. 1, as well as “services furnished by a
hospital . . . or other institution for the hospitalization
or care of human beings.” See Minn.
Stat. § 145.682, subd. 1 (incorporating other statutory definitions
including Minn. Stat. § 145.61, subd. 4 (2004)). While not explicit, appellants’ arguments
include an agency theory in that Hornibrook “completely supported abusive
behavior, extreme carelessness, negligence of [Dr.] Kirshbaum and, even more,
demonstrated abusive behavior himself.” Furthermore, appellants sued Hornibrook
as “Administrator of Fairview Ridges [C]linic with its principal place of
business at 303 E[.]
Thus, in appellants’ claim, Hornibrook’s alleged errors were committed in Hornibrook’s role as an administrator of Fairview Ridges Clinic. In their complaint, appellants make no mention of claims against Hornibrook as an individual. Appellants mention Hornibrook only in his professional capacity with the clinic, including his title and business address in their complaint. A clinic is an entity providing health care. See Minn. Stat. § 145.61, subd. 4 (2004). Such health-care providers are included under the coverage of the medical-malpractice statute. Minn. Stat. § 145.682, subd. 1. Therefore, the district court’s description of appellants’ claims as medical malpractice applies to the claims asserted against Hornibrook. Appellants failed to comply with the medical-malpractice statute. This failure requires that these claims be dismissed with prejudice.
The district court described
appellants’ claims as “in essence allegations of medical malpractice” and,
therefore, included under the district court’s reasoning that appellants failed
to comply with the statute. If appellants
do have other viable claims not covered by the district court’s decision, we
have discretion to address any issue as justice requires.
first motion claimed that appellants had no recourse for their claims under
respondents moved in the alternative to require appellants to plead their
claims of fraud with specificity. “In
all averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity.”
Here, appellants claim that Dr. Kirshbaum engaged in fraud and fraudulent statements by concealing diagnostic information from another physician upon referral, excluding relevant conditions from their medical records, failing to obtain an x-ray, and concealing diagnoses. In no place are the elements of fraud indicated nor are sufficient details provided to recognize that the elements have been satisfied. Therefore, the district court’s dismissal is also supported by appellants’ lack of specificity in their claims.
Affirmed as modified.