This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Patty A. Becker,



Ralph W. Bashioum, M.D., et al.,


Filed June 1, 1999


Klaphake, Judge

Hennepin County District Court

File No. 97-022873

Jesse Gant, III, Gant Law Office, 670N Grain Exchange Building, 301 Fourth Ave. S., Minneapolis, MN 55415 (for appellant)

William M. Hart, Jenneane L. Jansen, J. Richard Bland, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 S. Sixth St., Minneapolis, MN 55402-3788 (for respondents)

Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Schultz, Judge.[*]



Appellant's medical malpractice action was dismissed because she failed to provide an affidavit certifying that an expert had reviewed the case as required by Minn. Stat. § 145.682 (1998). Because we see no error in the construction or application of the statute, we affirm.


Respondent Ralph Bashioum, M.D., a cosmetic surgeon, performed breast augmentation surgery on appellant Patty Becker, using one 300 cubic centimeter (cc) silicone implant and one 275 cc silicone implant. Appellant claims that she had selected 250 cc implants and agreed only to one larger implant when respondent informed her of the asymmetry of her breasts after she had been sedated for surgery. She sued respondent, alleging negligence.

Minn. Stat. § 145.682, subd. 3 (1998) requires a medical malpractice plaintiff's attorney to certify that

the facts of the case have been reviewed by the plaintiff's attorney with an expert whose qualifications provide a reasonable expectation that the expert's opinions could be admissible at trial and that, in the opinion of this expert, one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff[.]

Id. When appellant failed to provide an affidavit, respondent moved to dismiss with prejudice under Minn. Stat. § 145.682, subd. 6 (1998) (failure to provide expert's affidavit will result in dismissal with prejudice). Appellant argued that no affidavit was required because her cause of action was based on lack of informed consent and lay negligence, neither of which require expert testimony.

The matter was continued so appellant could consult other counsel. When she again failed to provide an affidavit, respondent moved a second time for dismissal. Appellant then filed affidavits from a physician, but the district court found that the affidavits did not meet the requirements of the statute and dismissed with prejudice. Appellant challenges the dismissal, arguing that Minn. Stat. § 145.682, subd. 3 does not apply and, alternatively, that the affidavits she submitted meet its requirements.

The construction of a statute is a question of law subject to de novo review by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). First, we conclude that appellant is obliged to provide an affidavit because Minn. Stat. § 145.682, subd. 2, requires an affidavit if expert testimony is necessary to establish a prima facie case in a malpractice action, irrespective of whether that action sounds in "contract or tort." Causation is an element of a prima facie case of negligence and breach of contract. See, e.g., Leubner v. Sterner, 493 N.W.2d 119, 121 (Minn. 1992) ("to establish a prima facie case of medical malpractice * * *, a plaintiff must prove * * * that it is more probable than not that his or her injury was a result of the defendant health care provider's negligence"); Cornfeldt v. Tongen, 295 N.W. 2d 638, 640 (Minn. 1980) (plaintiff in an informed consent malpractice action must show "breach of [the duty to disclose], causation and damage").

Appellant argues that a factfinder would not need expert testimony to ascertain that the surgery caused her physical and psychological damage. But the issue is not whether appellant's surgery caused her damage; the issue is how much damage she suffered from the use of implants that were 10-20 percent larger than the implants she allegedly chose. Thus, only a cosmetic surgeon or health care professional familiar with the effects of implants could provide evidence on whether appellant suffered damage due to the implants used in her surgery. Because expert testimony is necessary to establish a prima facie case on both of appellant's causes of action, she must submit the affidavit certifying an expert has reviewed her claim and determined it to be valid. See Minn. Stat. § 145.682, subd. 2.

Appellant further argues that the affidavits she submitted from Dr. Barry Jacobs meet the statutory requirement. We disagree. The affidavits indicate that Dr. Jacobs' only qualification is being a "board certified physician currently residing in the State of California." This qualification does not "provide a reasonable expectation that the expert's opinions could be admissible at trial" of a cosmetic surgeon. See Minn. Stat. § 145.682, subd. 3(a).

Nor does the content of the affidavits meet the statutory requirement by addressing whether respondent "by that action [i.e. using implants 10 percent or 20 percent larger than agreed upon] caused injury to the plaintiff." Id. In relevant part, Dr. Jacobs said in his first affidavit only that:

It is my opinion, based on my medical experience and training that to select a prosthesis size in pre-op is an implied contract. The contract was breached when a different size was used.

To tell the patient post-sedation that she is asymmetrical and request the use of a larger implant, does not, in my opinion represent proper informed consent.

In my opinion, [respondent] deviated from the applicable standard of care and by that action caused injury to [appellant].

The second affidavit is no more specific on what injury respondent's use of the larger implants caused appellant. Because the affidavits appellant submitted do not meet the statutory requirement, respondent's motion for dismissal was appropriately granted.


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