This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-1449

Dr. Hollis L. Stavn,

Appellant,

vs.

Board of Regents of the University of Minnesota,

d/b/a University of Minnesota Hospital and Clinic,

Respondent,

Dr. Paul N. Yakshe, et al.,

Respondents.

Filed December 31, 1996

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 9416327

Robert J. Hajek, Warchol, Berndt & Hajek, P.A., 3433 Broadway Street Northeast, Suite 110, Minneapolis, MN 55413-1783 (for Appellant)

Barry G. Vermeer, Anne T. Johnson, Gislason, Dosland, Hunter & Malecki, P.L.L.P., Post Office Box 5297, Minnetonka, MN 55343-2297 (for Respondent Board of Regents)

David C. Hutchinson, Matthew J. Hanzel, Geraghty, O'Loughlin & Kenney, P.A., 1400 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Respondents Yakshe et al.)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Dr. Hollis L. Stavn challenges the dismissal of his medical malpractice claim against respondents University of Minnesota Hospital and Clinic (the hospital) and Dr. Paul N. Yakshe and Internal Medicine Associates (collectively "Dr. Yakshe"), arguing that respondents should have been estopped from seeking dismissal of the suit under Minn. Stat. § 145.682. We affirm.

FACTS

Dr. Yakshe, a gastroenterologist, performed a surgical procedure called an endoscopic retrograde cholangiopancreatography (ERCP procedure) on appellant in September 1992 at the hospital. The ERCP procedure requires that dye be injected into the pancreas. Appellant contends that he developed pancreatitis as a result of the ERCP procedure.

On August 15, 1994, appellant brought suit against Dr. Yakshe and the hospital alleging that respondents (1) failed to provide informed consent, and (2) "may have deviated from the applicable standard of care in the administration of the ERCP procedure." Appellant served respondents with an affidavit of his attorney and a letter from appellant's treating physician, Dr. Richard Auld. According to Dr. Auld, the failure to notify appellant about the possibility of pancreatitis prevented appropriate informed consent. Dr. Auld did not address a deviation from the applicable standard of care.

Along with the summons and complaint, appellant also served a request for documents, Set I, seeking copies of all reports and videotapes of his ERCP procedure. On December 6, 1994, appellant served respondents with a request for production of documents, Set II, seeking a complete set of appellant's medical records and x-rays. Respondents' responses to requests for documents, Set I, were served by the hospital on December 13, 1994, and by Dr. Yakshe on January 18, 1995. The documents contained information about the number of dye injections and the quantity of dye used, but no information regarding the quantity of each injection or the force and frequency of the injections. Dr. Yakshe also responded that he had no recollection of videotaping the procedure and that despite a 10-hour search he and his staff were unable to locate such a videotape. The hospital served its response to Set II on January 25, 1995.

During Dr. Yakshe's deposition on January 18, 1995, he revealed that he possessed a "shadow file," which contained, among other things, his personal notes about his patients. Appellant served a request on February 20, 1995, for production of documents, Set III, requesting a complete copy of Dr. Yakshe's shadow file.

On February 13, 1995, the 180-day deadline for service of an affidavit of expert identification under Minn. Stat. § 145.682, subds. 2(2), 4 (1996) expired. While appellant had provided Dr. Auld's letter about the informed consent issue, he had not identified an expert who would testify about a deviation from the standard of care. On April 24, 1995, Dr. Yakshe moved to dismiss appellant's claim of negligent administration of the ERCP procedure. The hospital joined in the motion and also moved to dismiss the informed consent claim as it pertained to the hospital. On May 8, 1995, appellant served an affidavit of expert identification in which Dr. Auld stated that he believed the ERCP procedure was negligently performed. Appellant also served a motion to compel discovery, seeking production of the shadow file, x-rays, and the alleged videotape of the ERCP procedure.

On May 11, 1995, Dr. Yakshe produced 39 pages of the shadow file that he claimed were not privileged or protected by the Data Practices Act. All of these documents had already been produced to appellant.

The district court granted Dr. Yakshe's and the hospital's motion to dismiss with respect to appellant's negligence claim. The court denied the hospital's motion for summary judgment with respect to the informed consent claim. The court also denied appellant's motion to compel production. In September 1995, appellant voluntarily dismissed the informed consent claim, and a final judgment was entered dismissing the entire action.

D E C I S I O N

Within 180 days of commencing a medical malpractice action, a plaintiff must serve the defendant with an affidavit stating the identity of experts to be called at trial and the substance of the experts' expected testimony. Minn. Stat. § 145.682, subds. 2(2), 4 (1996). The affidavit must include the standard of care, the acts allegedly violating that standard, and an outline of the chain of causation. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn. 1990). Failure to comply with the statute's requirements 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 (1996). We will not reverse a district court's dismissal of an action under Minn. Stat. § 145.682 (1996) absent an abuse of discretion. Sorenson, 457 N.W.2d at 190.

Appellant did not file the affidavit of expert identification by February 13, 1995, the statutory deadline. Appellant argues that respondents should be estopped from seeking a procedural dismissal of this action because their overdue and incomplete discovery responses prevented him from complying with the statute. We disagree.

First, the affidavit of Dr. Auld served on May 8, 1995, indicates that in forming his opinions, Dr. Auld relied on the medical records and x-rays that had been in appellant's possession since, at the latest, January 18, 1995, nearly a month before the expiration of the 180-day deadline under section 145.682. Second, while we recognize that respondents were late in responding to some of appellant's discovery requests, we note that appellant did not file a motion to compel discovery until May, well beyond the 180-day deadline. And although appellant was made aware of Dr. Yakshe's shadow file on January 18, 1995, appellant did not serve a discovery request for the file until February 20, 1995, nearly a week after the 180-day deadline passed. Third, even if appellant was lacking sufficient information for an expert to form an opinion about negligent administration of the ERCP procedure, he could have sought an extension of the deadline pursuant to Minn. Stat. § 145.682, subd. 4(b).

In his contention that respondents should be estopped from seeking dismissal under section 145.682, appellant points to Sorenson and Thorson v. Rice County Dist. One Hosp., 437 N.W.2d 410 (Minn. 1989). In both of those cases, the court found that it was reasonable for a plaintiff to rely on a defendant's action or failure to act when action would be expected. See Sorenson, 457 N.W.2d at 193 (when defendant withdraws motion to compel answers to interrogatories, plaintiff may rely on that withdrawal as signaling defendant's "acceptance of plaintiffs' answers in satisfaction of the requirements of section 145.682"); Thorson, 437 N.W.2d at 416 (defendants estopped from seeking dismissal under section 145.682 where defendants did not assert statutory defense for several months, represented that they were interested in talking settlement, and stood "mute when they knew [plaintiff's attorney] was expending time and money to establish that his client had a 'case' on the merits"). Here, respondents did not act or fail to act in a manner that would lead a reasonable person to believe that he did not need to comply with section 145.682. As the supreme court has recently noted in rejecting an estoppel argument under Minn. Stat. § 145.682,

the plain language of Minn. Stat. § 145.682, subd. 6 * * * mandates dismissal, upon motion, after expiration of the 180-day period for plaintiff's failure to comply with Minn. Stat. § 145.682, subd. 4.

Stroud v. Hennepin County Med. Ctr., __ N.W.2d __, __ (Minn. Dec. 19, 1996).

The district court did not abuse its discretion in dismissing appellant's negligence action under section 145.682 or in ruling on appellant's motion to compel discovery.

Affirmed.