This opinion will be unpublished and

may not be cited except as provided by

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




Claryce Darling Graham,



Jeffrey A. Lukens, M.D., et al.,


Elizabeth Elfstrand, M.D., et al.,


Linda F. Carson, M.D., et al.,


Filed September 9, 1997


Amundson, Judge

Hennepin County District Court

File No. 9602033

Paul-Bryan J. Zenke, 8034 North Shore Trail, Forest Lake, MN 55025 (for appellant)

Paul C. Peterson, William L. Davidson, Sandra E. Brisley, Lind, Jensen & Sullivan, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondents Jeffrey A. Lukens, M.D., Suburban Radiologic Consultants, Ltd., Margit L. Bretzke, M.D., and Associates in General and Vascular Surgery, Ltd.)

William H. Leary, Kyle M. Thomas, Geraghty, O'Loughlin & Kenney, P.A., 1400 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for respondents Elizabeth Elfstrand, M.D. and John A. Haugen Associates, P.A.)

David D. Alsop, Anne T. Johnson, Gislason, Dosland, Hunter & Malecki, P.L.L.P., 9900 Bren Road East, Suite 215E, Minnetonka, MN 55343 (for respondents Linda Carson, M.D. and the University of Minnesota Hospital and Clinic)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.



Appellant Claryce Darling Graham challenges the district court's procedural dismissal of her medical malpractice claim under Minn. Stat. § 145.682 (1996). We affirm.


Appellant Claryce Darling Graham commenced her medical malpractice suit against respondents in November 1995. Her suit originated from her November 1993 visit to respondent Dr. Jeffrey A. Lukens, during which time she received a mammogram. Over one year later, she was diagnosed with breast cancer and she alleges that the breast cancer was evident at the time of her 1993 mammogram. She began her suit pro se, then she was temporarily represented by counsel, and shortly before the 180-day statutory time limit to submit expert affidavits dictated by Minn. Stat. § 145.682 (1994) ended, she was represented by her present attorney. She moved for a 90-day extension, which was granted, and, on the last day of that period, Graham submitted the hastily executed affidavit of Dr. David Schultz. The respondents moved to dismiss the case, arguing that Dr. Schultz's affidavit failed to satisfy the requirements of Minn. Stat. § 145.682 (1996). On October 15, 1996, Graham filed a supplemental affidavit of Dr. Schultz, which the district court did not consider because of untimeliness. On November 22, 1996, the district court granted the motion to dismiss. This appeal followed.


I. Dismissal

The standard of review for a district court's dismissal of a medical malpractice claim for failing to provide a legally sufficient affidavit as required by statute is abuse of discretion. Stroud v. Hennepin County Medical Center, 556 N.W.2d 552, 555 (Minn. 1996).

Graham alleges that the district court abused its discretion by dismissing the case based on Minn. Stat. § 145.682 (1996), arguing that it was too early in the litigation to apply the statute. Minn. Stat. § 145.682 was created to eliminate nuisance medical malpractice lawsuits by requiring plaintiffs to file affidavits by experts supporting their allegations. Stroud, 556 N.W.2d 555. The relevant portion of the statute dictates that the affidavit must include

the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.

Minn. Stat. § 145.682, subd. 4 (1996).

Graham's attorney submitted an affidavit of the plaintiff's expert, Dr. Schultz. The affidavit specified that it only concerned defendant Dr. Lukens, and the relevant paragraph stated:

Defendant Jeffrey A. Lukens, M.D. failed to read the plaintiff's 11-10-93 right mammogram as suspicious for right breast malignancy. Malignant appearing calcifications were present and magnified/compressed views should have been obtained 11-10-93. This caused a 13 1/2 month delay in the patient being diagnosed properly with right breast cancer. Dr. J. Lukens thereby failed to meet the standard of care for a radiologist and I believe he has committed malpractice.

The district court found that this affidavit failed to meet the requirements of Minn. Stat. § 145.682, subd. 4 (1996).

Minnesota courts have clarified the requirements of Minn. Stat. § 145.682 since its inception. In 1990, the supreme court held:

In future cases, plaintiffs will be expected to set forth, by affidavit or answers to interrogatories, specific details concerning their experts' expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.

Sorenson v. St. Paul Ramsey Medical Center, 457 N.W.2d 188, 193 (Minn. 1990). Under the Sorenson guidelines, Dr. Schultz's affidavit failed the statutory requirements.

In dismissing Graham's suit, the district court relied on a 1992 supreme court case dealing with essentially the same allegation of failure to diagnose breast cancer. See Leubner v. Sterner, 493 N.W.2d 119 (Minn. 1992). The Leubner court held that the plaintiffs had not established a prima facie case for "negligent aggravation of a preexisting condition," and that there was indeed no such cause of action. Id. at 120. The court noted that

[s]omething more than this isolated conclusionary citation [that delay in diagnosis "invariably results in a more serious prognosis"] (which defendants claim is contradicted by newer scientific research) is needed to make out a prima facie case that in this instance it was "more probable than not" that delay in diagnosing a cancer caused other cancer to appear.

Id. at 122.

While Leubner involved a summary judgment after plaintiffs failed to establish a prima facie case at trial, whereas the instant case involves a statutory requirement of pre-trial expert affidavit to support a plaintiff's claims, Leubner is nonetheless clarifying. Leubner is useful in understanding the causation requirement dictated in Sorenson, because Leubner insists that delay of diagnosis of breast cancer does not establish causation of injury. Id.

Graham also argues that the district court improperly dismissed her claim with prejudice. The statute, however, is quite clear: the penalty for failing to comply with the statute's affidavit requirement is mandatory dismissal with prejudice. Minn. Stat. § 145.682, subd. 6 (1996).

II. Supplemental Affidavit

Graham argues that the district court erred in not considering Dr. Schultz's supplemental affidavit, which was submitted by her after her extension to submit affidavits had expired. To support her argument, she cites another failure-to-diagnose medical malpractice case which states:

When matters outside the pleadings are presented to a court considering a motion to dismiss, and those external matters are not excluded by the court when it makes its determination, the motion to dismiss shall be treated as one for summary judgment.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Graham argues that "since the matter was in essence a summary judgment motion, Appellant had the right to submit affidavits," namely, that of Dr. Schultz, purportedly clarifying his opinion of respondents' negligence.

This argument is circular. In Fabio, the district court had exercised its discretion by considering matters outside the pleadings (a doctor's deposition) in granting a motion to dismiss. By not excluding the outside deposition, the motion to dismiss became procedurally a summary judgment. In the instant case, the district court did not chose to consider Dr. Schultz's supplemental affidavit in determining the motion to dismiss. Therefore, the dismissal is not to be treated as a summary judgment.