This opinion will be unpublished and

may not be cited except as provided by

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




Stewart Lindberg, as Trustee,



Health Partners, Inc., et al.,


Filed December 15, 1998

Reversed and remanded

Crippen, Judge

Ramsey County District Court

File No. CX962638

James F. Baldwin, Huyen Le Phan, Murnane, Conlin, White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)

Terence O'Loughlin, Matthew J. Hanzel, Geraghty, O'Loughlin & Kenney, P.A., 1400 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for respondents)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Holtan, Judge.[*]



Following the trial court's dismissal of medical malpractice suit pursuant to Minn. Stat. § 145.682, appellant Stewart Lindberg contends that his 180-day affidavit was sufficient to comply with the statute and that the court further erred in disregarding subsequently-disclosed information that established the merit of appellant's case. Concluding that appellant's 180-day affidavit is adequate, we reverse the trial court's dismissal.


On Monday morning, March 28, 1994, appellant's wife, Debra Lindberg, pregnant with her fourth child, called her clinic to ask for advice about her condition, which involved worsening, unrelieved swelling of her lower extremities. She repeated a description of her condition to a triage nurse who returned her call later Monday morning, and she asked the nurse if she should come into the clinic. The nurse said that she would let Ms. Lindberg know what to do after she had consulted with a midwife. An hour later, the nurse advised Ms. Lindberg to keep her next scheduled appointment at the clinic, which was to occur four days later.

Ms. Lindberg awoke at about 1:00 a.m. on March 29, suffering from additional symptoms. She called Group Health's baby line, advising the nurse that she had severe chest pain, a severe headache, a tight abdomen, epigastric discomfort, and felt that the baby was not moving. Reporting shortly thereafter that "things are getting worse," she was told to go to Fairview Riverside Hospital.

When Ms. Lindberg was admitted to the hospital, no fetal heartbeat was detectable, and her son was stillborn later in the morning. Appellant Stewart Lindberg commenced this lawsuit on March 25, 1996.

Accompanying appellant's summons and complaint was the first of two affidavits required by Minn. Stat. § 145.682, the affidavit of expert review. In September 1996, appellant served an affidavit identifying an expert and the affidavit of Dr. Stephen Cruikshank. Appellant expressly submitted these two affidavits pursuant to Minn. Stat. § 145.682, intending to comply with its 180-day deadline for the submission of a second required affidavit.

Dr. Cruikshank's 1996 affidavit was limited to a statement of familiarity with the duty of care for professionals who responded to Debra Lindberg, a declaration that the child, more probably than not, would not have died if Ms. Lindberg had been instructed to seek medical treatment when she first called Group Health on the morning of March 28, 1994, and that the death of the child was a direct and proximate result of the negligent conduct of respondent's midwives or other personnel.

Respondents filed a motion for dismissal under Minn. Stat. § 145.682 in August 1997, arguing that appellant had failed to provide a legally sufficient affidavit of expert review within 180 days of commencement of suit. Appellant served a supplemental affidavit of Dr. Cruikshank in October 1997. Two months later, judgment was entered granting respondents' motion to dismiss appellant's suit.


A trial court's ruling on whether a plaintiff failed to comply with the mandatory disclosure requirements of Minn. Stat. § 145.682 (1996) is reviewed under an abuse of discretion standard. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

The Minnesota legislature enacted Minn. Stat. § 145.682 to eliminate nuisance medical malpractice lawsuits. Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996). Section 145.682 requires plaintiffs to provide two different affidavits: (1) an initial affidavit of expert review, stating that the claim has been reviewed by an expert who believes that one or more of the defendants have deviated from the applicable standard of medical care; and (2) a later affidavit, due within 180 days of commencement of suit, which lists those experts who will likely testify at trial, 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, subds. 2-4.

This appeal concerns the sufficiency of the second of the affidavits required under section 145.682, appellant's September 1996 expert affidavit. Initially, we note that this affidavit fulfills one of the most important functions of the expert affidavit in that it identifies the expert that appellant intends to use at trial. See Sorenson, 457 N.W.2d at 191 (observing that identification of an expert is the most important disclosure required by the 180-day affidavit). Appellant has identified a doctor willing to testify and whose qualifications have never been questioned by respondents.

As in Sorenson, appellant's conclusion on causation requires little discussion beyond the simple announcement of the 1996 affidavit. On its face is the accusation that the child was in no peril save for the medical condition that was not given attention shortly before the child was stillborn. Cf. Stroud, 556 N.W.2d at 556. In Stroud, there were severe questions of causation because the plaintiff was in peril before seeking out medical help. Id. at 553-54.

The weakest portion of the expert's 1996 affidavit is its summary statement about the applicable standard of care. Sorenson requires a showing of the standard of care and the acts that violate it. Although we look critically at the content of this affidavit, we conclude that the affidavit is sufficient in the unique circumstances of the medical condition alleged here, which is the same condition alleged in Sorenson.

We are mindful as well of the judicial preference to dispose of cases on the merits. See Sorenson, 457 N.W.2d at 192 & n.5.[1] In addition, we are mindful of the fact that the fundamental purpose of section 145.682 is not to create a new limitations period but to eliminate lawsuits that are evidently frivolous. See Stroud, 556 N.W.2d at 555; Sorenson, 457 N.W.2d at 191; Hempel v. Fairview Hosp. & Healthcare Serv., Inc., 504 N.W.2d 487, 492 (Minn. App. 1993). Finally, we are mindful of the fact that the defendants in this case did not question the sufficiency of the affidavit for eleven months. While this does not establish estoppel, we recognize that a long delay in acting on the statute tends to suggest that the medical basis for the suit had been sufficiently disclosed to fulfill the purposes of the statute.

Reversed and remanded.

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

[1] See also Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 406 (Minn. 1986) (explaining that while pursuant to former Minn. R. Civ. P. 26.02(4)(A)(i) a party has an absolute right to a summary of the grounds for each opinion held by an opponent's expert and that sanctions can be imposed for inadequate answers, suppression of expert testimony is a serious sanction that should be seldom imposed).