This opinion will be unpublished and

may not be cited except as provided by

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




Donald Lunzer, et al.,



Bradley J. Qualey, M.D.,


Filed November 25, 1997

Reversed and Remanded

Kalitowski, Judge

Ramsey County District Court

File No. C0965385

John O. Murrin, 4018 West 65th Street, Edina, MN 55435 (for appellants)

William M. Hart, Katherine A. McBride, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Norton, Judge, and Willis, Judge.



Appellants challenge the dismissal of their medical malpractice suit arguing the district court erred in concluding they failed to provide an adequate expert disclosure affidavit as mandated by Minn. Stat § 145.682, subd. 4 (1996). We reverse and remand.


As a general rule "[a] trial court's dismissal of an action for procedural irregularities will be reversed on appeal only if it is shown that the trial court abused its discretion." Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). "Statutory construction, however, is a question of law and subject to de novo review on appeal." Id. The primary objective of the law is to dispose of cases on their merits. Firoved v. General Motors Corp., 277 Minn. 278, 283-84, 152 N.W.2d 364, 368 (1967).

In general, plaintiffs are required to serve upon defendants, within 180 days of commencing a medical malpractice action, an affidavit by plaintiffs' attorneys that identifies all expert witnesses to be called at trial on the issue of causation, as well as "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). If a plaintiff fails to comply with the 180-day requirement, the case must be dismissed with prejudice. Minn. Stat § 145.682, subd. 6 (1996).

The Minnesota legislature enacted Minn. Stat § 145.682 for the purpose of eliminating nuisance medical malpractice lawsuits by requiring plaintiffs to file affidavits verifying that their allegations of malpractice are well-founded.

Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996) (citing Oslund v. United States, 701 F. Supp. 710, 712 (D. Minn. 1988)).

In Sorenson, the Minnesota Supreme Court addressed the requirements of Minn. Stat. § 145.682 and indicated that the expert's affidavit or answers to interrogatories should contain the applicable standard of care, the acts or omissions which the plaintiff allege violated the standard of care, and an outline of the chain of causation. Sorenson, 457 N.W.2d at 193. Furthermore, "broad, conclusory statements as to causation" do not satisfy the statute. Stroud, 556 N.W.2d at 556.

In the present case, the district court determined that the Lunzers failed to comply with the statute because the Lunzers

have merely recited facts from the medical records and the conclusions they have drawn. The Lunzers have failed to specifically state how Dr. Qualey departed from the standard of care and how this caused Mr. Lunzer's damage.

The Lunzers contend their expert's affidavit complies with the statute. We agree. Specifically, in the Second Supplemental Answers to Expert Interrogatories, the Lunzers' expert stated that:

(1) The insertion of a Dynaflex penile prosthesis by Dr. Qualey into the penis of Mr. Lunzer was of insufficient length to allow for adequate intercourse.

(2) Dr. Qualey failed to exercise that degree of skill and learning that a specialist would possess in failing to properly measure the length of Mr. Lunzer's penis.

(3) [Dr. Qualey] should have performed the circumcision during the first operation which would have eliminated the necessity of a second operation.

(4) It was a violation of standard of care not to install a properly sized penile prosthesis.

(5) It would not be within the standard of care for a doctor to wait to remove foreskin in an individual upon installation of a Dynaflex Penile Prosthesis.

(6) The implant did not work properly in that there was a lack of rigidity at the head of the penis which caused it to buckle during intercourse attempts, making intercourse impossible.

(7) The installation of a defective Penile Prosthesis or the failure to circumcise certainly caused the problems he complained of including the painful swelling of skin necessitating circumcision on 12/24/93 and the inability to have intercourse.

These statements address the standard of care, the alleged violation of the standard, and causation as required by the statute. The expert's statement here provides more than the "empty conclusions" rejected in Sorenson where the supreme court concluded that

[t]o state * * * that the expert will testify that the defendants "failed to properly evaluate" and "failed to properly diagnose" is not enough. These are empty conclusions which, unless shown how they follow from the facts, can mask a frivolous claim.

Sorenson, 457 N.W.2d at 192-93.

We recognize the district court's extraordinary efforts to instruct appellant on compliance with the statutory requirements, including granting an additional 30 days to comply. However, the statute at issue was promulgated to prevent nuisance malpractice suits, not to force a plaintiff to try a medical malpractice case at the affidavit stage. Further, we note the law's preference to resolve cases on their merits. Therefore, we conclude the district court erred in dismissing the Lunzers' complaint on procedural grounds, and we reverse and remand to the district court for further proceedings.

Reversed and remanded.