This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2549

 

 

Nina G. Gorokhova,

Appellant,

 

Vladimir A. Barkhudarov,

Appellant,

 

vs.

 

Frank Irwin Kirshbaum, M.D., et al.,

Respondents.

 

 

Filed December 5, 2006

Affirmed as modified

Halbrooks, Judge

 

 

Dakota County District Court

File No. C1-05-8561

 

 

Nina G. Gorokhova, Vladimir A. Barkhudarov, 2312 Friendship Lane, Burnsville, MN 55337 (pro se appellants)

 

Kathleen M. Loucks, Gislason & Hunter, LLP, 9900 Bren Road East, Suite 215E, Minnetonka, MN 55343-2297 (for respondents)

 

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from the district court’s judgment dismissing their claims without prejudice, appellants allege that (1) the district court failed to comply with rules of court in scheduling respondents’ motions, (2) the district court made incorrect findings of fact, (3) the district court incorrectly characterized the nature of appellants’ claims as medical malpractice, (4) the district court erred in dismissing appellants’ medical-malpractice claims for failure to comply with Minn. Stat. § 145.682, subd. 2(1) (2004), and (5) appellants’ claims have merit.  We affirm as modified.

FACTS

            The claims of pro se appellants Nina G. Gorokhova and Vladimir A. Barkhudarov against respondents Frank Irwin Kirshbaum, M.D., and James Hornibrook, Administrator of Fairview Ridges Clinic, arise out of their medical treatment at the clinic during the time frame of December 2003 to April 24, 2004.  Appellants assert that Dr. Kirshbaum failed to properly diagnose their conditions; concealed diagnoses from the Social Security Administration; and failed to properly treat their medical symptoms.  Additionally, appellants allege that Dr. Kirshbaum made fraudulent entries in their medical records by noting injuries that appellants say did not exist.  With respect to Hornibrook, appellants assert that he failed to protect them from the harmful actions of Dr. Kirshbaum and violated their rights as patients by advising them that the clinic would no longer provide services to them.

            Following appellants’ initiation of the lawsuit, respondents’ attorney promptly wrote to appellants asking for compliance with Minn. Stat. § 145.682 (2004), requiring an affidavit certifying expert review of the claims of medical malpractice.  When appellants failed to provide the requisite affidavit, respondents moved to dismiss the case for failure to state a claim and failure to comply with Minn. Stat. § 145.682, or, in the alternative, for a more definite statement of the claims pursuant to Minn. R. Civ. P. 12.05. 

            The district court heard the motion to dismiss on November 16, 2005, a date that appellants allege was improperly set by respondents’ attorneys and not by the court.  The district court concluded that appellants’ claims “are in essence allegations of medical malpractice,” and therefore, based on appellants’ failure to provide the required affidavit, dismissed the case without prejudice.  This appeal follows.

D E C I S I O N

I.

            As an initial matter, appellants claim that respondents, not the court, improperly scheduled the November 16, 2005 hearing date on respondents’ motions.  The district court issued a scheduling order in this matter, indicating a trial date of February 15, 2006.  The district court has great discretion in determining the procedural calendar of a case, Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982), and is responsible for establishing a scheduling order for trial.  Minn. R. Gen. Pract. 111.03.  A party filing a motion is responsible for obtaining from the court a hearing date, which the party must promptly provide to all parties.  Minn. R. Gen. Pract. 115.02.  That is what transpired here.

The district court and respondents’ attorney complied with procedural requirements, and the district court acted within its discretion by setting the hearing date. 

II.

            Appellants challenge the district court’s dismissal of their claims based on their noncompliance with Minn. Stat. § 145.682 (2004), which requires an affidavit of expert review for a medical-malpractice claim, on the ground that their claims are for personal injury, not medical malpractice.

            Minnesota courts define medical malpractice as “the failure of a physician and a surgeon to exercise the care and professional skill usually exercised by the ordinary member of his profession in good standing in the same or similar locality.”  McElwain v. Van Beek, 447 N.W.2d 442, 444-45 (Minn. App. 1989) (quotation omitted), review denied (Minn. Dec. 20, 1989).  Medical malpractice is a broad term, including claims arising in medical diagnosis, care, and treatment, D.A.B. v. Brown, 570 N.W.2d 168, 171 (Minn. App. 1997) (holding in a breach of fiduciary duty that medical malpractice was “the gravamen of the complaint”), and anything related to a physician’s negligent nondisclosure.  Paulos v. Johnson, 502 N.W.2d 397, 400 (Minn. App. 1993), review denied (Minn. Sept. 10, 1993). 

            The district court determined that appellants’ claims against Dr. Kirshbaum were based on allegations of medical malpractice, as the claims “related to the doctor/patient relationship between them.”  Minnesota law requires that a plaintiff alleging malpractice against a health-care provider serve an affidavit of expert review with the complaint when expert testimony will be necessary to establish a prima facie case.  Minn. Stat. § 145.682, subds. 2, 3.  The affidavit must state that the plaintiff’s attorney has reviewed the facts with an expert that the attorney may reasonably expect has sufficient qualifications to be admitted as an expert at trial.  Id., subd. 3. 

            In order to prove medical malpractice, a plaintiff must establish (1) the applicable standard of care (2) from which the physician departed (3) causing the patient’s injuries.  McElwain, 447 N.W.2d at 445.  Expert testimony is necessary to establish these elements.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 191 (Minn. 1990); Plutshack v. Univ. of Minn. Hosps., 316 N.W.2d 1, 5 (Minn. 1982).  But there are exceptions for harm that would be obvious to a lay juror.  Sorenson, 457 N.W.2d at 191; Miller v. Raaen, 273 Minn. 109, 114, 139 N.W.2d 877, 880 (1966).  If the plaintiff bringing a medical-malpractice claim fails to provide the statutorily required affidavit within 60 days of demand, the defendant’s attorney may move for dismissal.  Minn. Stat. § 145.682, subd. 6(a).  If the district court determines that a plaintiff failed to comply, the statute provides for “mandatory dismissal with prejudice.”  Id. 

            Here, the district court found that appellants’ claims concerned medical malpractice.  Because this court sustains findings of fact unless clearly erroneous and the record supports the factual findings, we agree that Minn. Stat. § 145.682 applies.  Therefore, the statute’s remedy governs disposition of appellants’ claims against Dr. Kirshbaum. 

III.

            The district court dismissed without prejudice appellants’ claims of medical malpractice against Dr. Kirshbaum based on appellants’ failure to comply with Minn. Stat. § 145.682, subd. 2(1).  Respondents assert that Minnesota law requires dismissal with prejudice. 

            Respondents are required to file a notice of review for issues decided adversely.  Minn. R. Civ. App. P. 106.  Generally this court declines to address an issue not raised in a notice of review.  Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793 (Minn. 1986) (affirming court of appeals in declining to address issue not presented in respondent’s notice of review); Huttner v. State, 637 N.W.2d 278, 284 n.1 (Minn. App. 2001) (citing authority to decline review when respondent’s issue is not preserved for appeal through notice of review), review denied (Minn. Nov. 13, 2001). 

            But “[t]he appellate courts may reverse, affirm or modify the judgment or order appealed from or take any other action as the interest of justice may require.”  Minn. R. Civ. App. P. 103.04.  Similarly, appellate courts “may review any other matter as the interest of justice may require” with a scope of review determined by “whether proper steps have been taken to preserve issues for review on appeal.”  Id.  But “[a]ppellate courts have a limited ability to address issues not properly preserved for appeal.”  Roth v. Weir, 690 N.W.2d 410, 413 (Minn. App. 2005). 

            Factors to be considered in determining whether to take review of an issue for which no notice of review was filed include whether the issue is one of first impression, the issue appears prominently in briefing, the issue was “implicit in” or “closely akin to” arguments raised at the district court, and the issue does not depend upon new or controverted facts.  Watson v. United Servs. Auto. Ass’n, 566 N.W. 2d 683, 688 (Minn. 1997).  Here, respondents requested dismissal with prejudice in their proposed order to the district court, and no new or controverted facts are necessary to address respondents’ proper statutory remedy because the distinction is only dismissal with or without prejudice.  Proper disposition of appellants’ medical-malpractice claim by the statutory remedy is, therefore, a matter within this court’s authority to review as justice requires.

            Under the terms of the statute, the failure to provide the affidavit within 60 days of its demand, upon the motion of the defendant, results in “mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case.”  Minn. Stat. § 145.682, subd. 6(a).  In cases that justify dismissal, reviewing courts have been “firm” in requiring noncompliance be sanctioned with dismissal with prejudice.  Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 726 (Minn. 2005).  Here, despite appellants’ argument to the contrary, we agree with the district court that their claims against Dr. Kirshbaum stem from their allegations of his alleged malpractice.  Because appellants failed to satisfy the requirements of Minn. Stat. § 145.682, subd. 2(1), their medical-malpractice claims against Dr. Kirshbaum should be dismissed with prejudice.

IV.

            Appellants claim that respondent Hornibrook, the clinic administrator, “supported abusive behavior” of respondent Dr. Kirshbaum, and told appellants to “never come back,” thus causing “shock[ ], . . . deep depression, [and feeling] insulted.”  Furthermore, Hornibrook’s follow-up letter confirming denial of future services, appellants claim, “is a violation of [c]ivil and [p]atient [r]ights and added more abuse.”   

            Under the medical-malpractice statute, a health care provider includes a “hospital, including all persons or entities providing health care,” Minn. Stat. § 145.682, subd. 1, as well as “services furnished by a hospital . . . or other institution for the hospitalization or care of human beings.”  See Minn. Stat. § 145.682, subd. 1 (incorporating other statutory definitions including Minn. Stat. § 145.61, subd. 4 (2004)).  While not explicit, appellants’ arguments include an agency theory in that Hornibrook “completely supported abusive behavior, extreme carelessness, negligence of [Dr.] Kirshbaum and, even more, demonstrated abusive behavior himself.” Furthermore, appellants sued Hornibrook as “Administrator of Fairview Ridges [C]linic with its principal place of business at 303 E[.] Nicollet Blvd[.], Burnsville, MN 55337.” 

            Thus, in appellants’ claim, Hornibrook’s alleged errors were committed in Hornibrook’s role as an administrator of Fairview Ridges Clinic.  In their complaint, appellants make no mention of claims against Hornibrook as an individual.  Appellants mention Hornibrook only in his professional capacity with the clinic, including his title and business address in their complaint.  A clinic is an entity providing health care.  See Minn. Stat. § 145.61, subd. 4 (2004).  Such health-care providers are included under the coverage of the medical-malpractice statute.  Minn. Stat. § 145.682, subd. 1.  Therefore, the district court’s description of appellants’ claims as medical malpractice applies to the claims asserted against Hornibrook.  Appellants failed to comply with the medical-malpractice statute.  This failure requires that these claims be dismissed with prejudice.

V.

            The district court described appellants’ claims as “in essence allegations of medical malpractice” and, therefore, included under the district court’s reasoning that appellants failed to comply with the statute.  If appellants do have other viable claims not covered by the district court’s decision, we have discretion to address any issue as justice requires.  Minn. R. Civ. App. P. 103.04.  “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.’”  Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996) (quoting Sorenson, 457 N.W.2d at 190).  This analysis embraces two of respondents’ district court motions. 

            Respondents’ first motion claimed that appellants had no recourse for their claims under Minnesota law.  A party may move the court to dismiss claims that fail to state a claim.  Minn. R. Civ. P. 12.02(e).  Upon review, the appellate court reviews such motions by determining “whether the complaint sets forth a legally sufficient claim for relief.”  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  While appellants certainly have civil and patient rights, see, e.g., Minn. Stat. § 144.651 (2004) (codifying the Patients Bill of Rights), appellants have not clearly stated what rights were violated.  Thus, appellants have failed to state a claim.

            Secondly, respondents moved in the alternative to require appellants to plead their claims of fraud with specificity.  “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”  Minn. R. Civ. P. 9.02.  To comply with the rule, all elements of fraud must be pleaded with specificity.  Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 747-48 (Minn. 2000).  The elements include: (1) a false representation of a past of present fact; (2) that was material and susceptible of knowledge; (3) that the representer knew the statement was false or indicated the statement was personal knowledge without knowing whether true or false; (4) that the representer intended to induce the plaintiff to act; (5) that the plaintiff acted with justifiable reliance upon the representation; and (6) that the representation caused damages; (7) for which the representation was the proximate cause.  Id. at 747.

            Here, appellants claim that Dr. Kirshbaum engaged in fraud and fraudulent statements by concealing diagnostic information from another physician upon referral, excluding relevant conditions from their medical records, failing to obtain an x-ray, and concealing diagnoses.  In no place are the elements of fraud indicated nor are sufficient details provided to recognize that the elements have been satisfied.  Therefore, the district court’s dismissal is also supported by appellants’ lack of specificity in their claims.

            Affirmed as modified.