This opinion will be unpublished and

may not be cited except as provided by

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




Mark McCollar,



The Mayo Clinic, et al.,


Filed November 18, 1997


Short, Judge

Foley, Judge, Dissenting

Olmsted County District Court

File No. C2963258

Graham Heikes, 4700 Norwest Center, 90 South Seventh Street, Minneapolis, Minnesota 55402-4129 (for appellant)

Leo Stern, Robin L. Preble, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, Minnesota 55402-3397 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Foley, Judge.[*]


SHORT, Judge

Mark McCollar brought a medical malpractice claim against Dr. Eugene Keller and the Mayo Clinic (clinic) claiming battery, and negligent nondisclosure and performance arising out of surgery to correct a skeletal open bite problem. On a defense motion, the trial court dismissed the complaint because McCollar failed to provide the expert disclosure affidavit mandated by Minn. Stat. § 145.682, subd. 2(2) (1996). On appeal, McCollar argues: (1) no expert testimony is necessary; and (2) in the alternative, his expert report is in substantial compliance with Minn. Stat. § 145.682, subd. 4 (1996). We affirm.


We will reverse a trial court's dismissal of an action for procedural irregularities only if the trial court abused its discretion. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990) (citing Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 404 (Minn. 1986)). However, statutory construction is a question of law that is subject to de novo review. Sorenson, 457 N.W.2d at 190 (citing Doe v. Minnesota State Bd. of Med. Exam'rs, 435 N.W.2d 45, 48 (Minn. 1989)).


McCollar argues the trial court erred by dismissing his complaint because Minn. Stat. § 145.682 is inapplicable to his malpractice claims. See Minn. Stat. § 145.682, subd. 2 (requiring disclosure affidavit in malpractice action based on contract or tort unless expert testimony not necessary to establish a prima facie case); Kohoutek v. Hafner, 383 N.W.2d 295, 299 (Minn. 1986) (observing, in dictum, no expert testimony needed in battery case where question is whether physician told patient of nature and character of procedure and patient consented to that procedure). We disagree. A jury is not permitted to speculate about issues beyond a lay person's general knowledge. See Smith v. Knowles, 281 N.W.2d 653, 655-56 (Minn. 1979) (concluding expert testimony was crucial to plaintiff's claims of negligent diagnosis and treatment, and holding trial court properly dismissed claims because plaintiff failed to present sufficient competent medical testimony). Expert testimony is necessary in malpractice cases when facts, due to their scientific nature, are not within the jury's common knowledge. See Hestbeck v. Hennepin County, 297 Minn. 419, 424, 212 N.W.2d 361, 364 (1973) (holding expert testimony not necessary where matters to be proven fall within an area of common knowledge); Miller v. Raaen, 273 Minn. 109, 113, 139 N.W.2d 877, 880 (1966) (holding in ordinary malpractice cases doctor's standard of care involves scientific knowledge that must be defined by expert medical witness).

The complaint alleges McCollar consented to a LeForte I osteotomy, but did not consent to a nasal antrostomy. The doctor and clinic claim the nasal antrostomy was part of the patient-approved medical procedure. To establish a prima facie case of battery in this medical malpractice lawsuit, McCollar must show: (1) the nasal antrostomy was substantially different, in nature and character, from the agreed-upon medical procedure; (2) his consent to one procedure did not extend to cover the other procedure; and (3) he sustained injuries caused by the unauthorized procedure. See K.A.C. v. Benson, 527 N.W.2d 553, 561 (Minn. 1995) (holding in medical malpractice claims, battery consists of touching of substantially different nature and character from that to which patient consented). Jurors cannot distinguish between a LeForte I osteotomy and a nasal antrostomy without expert assistance due to the scientific nature of the medical procedures. Under these circumstances, expert testimony is necessary to determine if and how the two procedures differ, and which procedure caused McCollar's injuries. Minn. Stat. § 145.682 is applicable to McCollar's case, and required McCollar to serve an affidavit of expert disclosure.


McCollar also argues the trial court erred by dismissing his claims because his expert's report substantially complies with the statute. We disagree. Expert disclosure under Minn. Stat. § 145.682 must include:

specific details concerning [plaintiff's] experts' expected testimony, including the applicable standard of care, the acts or omissions which the plaintiff alleges resulted in a violation of the standard of care, and an outline of the chain of causation between the violation of the standard of care and the plaintiff's damages.

Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555-56 (Minn. 1996) (citing Sorenson, 457 N.W.2d at 193).

The record demonstrates the expert disclosure: (1) was in the form of an unsigned letter; (2) did not contain the standards of care for treatment of a skeletal open bite or for performance of a Le Forte I osteotomy; (3) failed to specify how the conduct deviated from those standards of care; (4) contained no underlying facts to support the expert's opinions; and (5) did not outline the chain of causation that resulted in damage. See Minn. Stat. § 145.682, subd. 4 (1996) (requiring affidavits or interrogatories to be signed by each expert listed). Given these facts, the trial court did not abuse its discretion in dismissing McCollar's claims. See Minn. Stat. § 145.682, subd. 6 (1996) (providing failure to comply with provisions of Minn. Stat. § 145.682 results, upon motion, in mandatory dismissal with prejudice of each cause of action that requires expert testimony).

The doctor and clinic move to strike pages A-33 through A-46 of McCollar's appendix. Because McCollar's supplemental answers to interrogatories were filed and served outside of the 180-day statutorily mandated time period and were not part of the trial court record, the motion is granted. See Minn. Stat. § 145.682, subd. 2 (1996) (requiring expert affidavit to be served on defendant within 180 days after commencement of suit); Minn. R. Civ. App. P. 110.01 (stating papers filed in trial court, exhibits, and transcripts of proceedings, if any, shall constitute record on appeal); Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (holding reviewing court must generally consider only issues that record shows were presented and considered by trial court in deciding matter before it).


FOLEY, Judge (dissenting).

I write separately to express dissent from the majority opinion with respect to the dismissal of the battery claim against respondents Dr. Keller and the Mayo Clinic.

The majority opinion includes "battery" within the nomenclature of medical malpractice, which requires an expert's affidavit under Minn. Stat. § 145.682, subds. 2, 3 (1996). Battery is not listed in the statute. It is my view that there is a clear distinction between battery, an intentional tort, and negligence. The two terms are opposites. Malpractice is a form of negligence. See Kalsbeck v. Westview Clinic, P.A., 375 N.W.2d 861, 867-68 (Minn. App. 1985) (jury instructions included basic definition of negligence and reasonable care, and specifically, standard of care required of doctors), review denied (Minn. Dec. 30, 1985).

The Minnesota Supreme Court has made it clear that there is a practical difference between battery and negligent nondisclosure cases. In Kohoutek v. Hafner, 383 N.W.2d 295, 299 (Minn. 1986), the supreme court described a battery in the medical malpractice context as "consist[ing] of an unpermitted touching, in the form of a medical procedure or treatment." The opinion goes on to state:

Another practical difference between battery and negligent nondisclosure claims involves the method of proving the unlawful act. In battery cases, no expert testimony need be adduced for the question is whether the physician, in fact, told the patient of the nature and character of the procedure and the patient consented to that procedure.

Id. (emphasis supplied). Kohoutek has never been overruled and its definition of a battery was cited in K.A.C. v. Benson, 527 N.W.2d 553, 561 (Minn. 1995). Respondent asserted at oral argument that Kohoutek has been inferentially overruled.

In an action alleging malpractice, error, mistake, or failure to cure, * * * which includes a cause of action as to which expert testimony is necessary to establish a prima facie case, the plaintiff must * * * serve upon defendant with the summons and complaint an affidavit as provided in subdivision 3 * * *.

Minn. Stat. § 145.682, subd. 2 (emphasis supplied).

However, none of the cases that have cited Kohoutek has indicated in any way that Kohoutek's rule on battery has been overruled. See K.A.C., 527 N.W.2d at 561 (battery claim failed because plaintiff was not subjected to procedure other than that to which consent given; no reliance on, or discussion of, need for expert testimony to prove battery); Williams v. Wadsworth, 503 N.W.2d 120, 123 (Minn. 1993) (no discussion of Kohoutek's battery holding). Furthermore, the Eighth Circuit has interpreted Minn. Stat. § 145.682 to require an expert medical affidavit only where such testimony is required to prove a prima facie case. See Vakil v. Mayo Clinic, 878 F.2d 238, 239 (8th Cir. 1989) (Minn. Stat. § 145.682 requires district court to determine if expert affidavit is necessary--remanded for that determination); Chizmadia v. Smiley's Point Clinic, 873 F.2d 1163, 1165 (8th Cir. 1989) (remanding for district court's determination as to need for expert affidavit under Minn. Stat. § 145.682). This court has not been directed to any case that either overrules Kohoutek or mandates an expert's affidavit in a battery malpractice case.

Appellant went to the Mayo Clinic in 1993 to consult with a dentist about a pronounced misalignment of his facia. The recommended surgery to correct this problem is known as an osteotomy. Appellant consented to the osteotomy after reassurances that it had a record of success without complications and that his insurance would cover the expense. Nothing was said to him about any problem with his sinuses. He had no complaints about his sinuses and gave no consent for surgery on his sinuses. The surgery on the facia, the osteotomy, was performed on April 13, 1994.

After regaining consciousness, appellant was told by respondent, Dr. Keller, that he had received a "rebate." Appellant asserts that Dr. Keller told him he had decided to perform an extra procedure, a bilateral anstrostomy, i.e., the reaming-out of the maxillary sinus cavity on both sides of the nose. Appellant contends he never gave any consent for this "extra" surgery. After discharge from the Mayo Clinic, appellant began to suffer from sinus problems never previously experienced. He then brought suit for damages.

In my view, the "extra" procedure performed by Dr. Keller constituted a battery for which no expert affidavit under the statue was required. There was nothing life threatening about the condition of his sinuses that compelled this extra surgery. This is not to say that at trial appellant would be precluded from using an expert in support of his claim. Where surgery was scheduled on the right ear, but surgery was performed on the left ear, the supreme court held:

[T]he question whether defendant's act in performing the operation upon plaintiff was authorized was a question for the jury to determine. If it was unauthorized, then it was * * * unlawful. It was a violent assault, not a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful.

Mohr v. Williams, 95 Minn. 261, 271, 104 N.W. 12, 16 (1905) (cited with approval in K.A.C., 522 N.W.2d at 561) (emphasis added). In K.A.C., the court noted that battery in a medical malpractice context "consists of touching of a substantially different nature and character from that to which the patient consented." K.A.C., 522 N.W.2d at 561. K.A.C. reaffirms Kohoutek's definition of battery.

To reiterate, while performing surgery on the facia, the osteotomy, Dr. Keller decided to perform the "extra procedure," bilateral antrostomy of the sinuses, because he found the centrum filled with "mucopolypocil material." There is no suggestion this situation endangered appellant's life or health, and to have proceeded to do this extra procedure without the appellant's consent constituted a battery. See Bang v. Charles T. Miller Hosp., 251 Minn. 427, 434, 88 N.W.2d 186, 190 (1958) (acknowledging that consent may be considered to have been implicitly given when, during surgery, surgeon discovers life-threatening condition and expanded surgery to address unforeseen condition).

In this case, the trial court dismissed the battery claim asserted by appellant (the patient) for failure to comply with the statute requiring an affidavit by an expert. In essence, the court granted summary judgment to respondents. In my view, this was reversible error, and the battery claim should be reinstated and the case remanded for trial by the jury.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.