This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1115

 

 

Tammy L. Orendorf,

Appellant,

 

vs.

 

North Valley Health Center, et al.,

Respondents.

 

 

Filed July 10, 2007

Affirmed

Lansing, Judge

 

Marshall County District Court

File No. C1-05-229

 

Tammy L. Orendorf, 705 South Washington Avenue, Crookston, MN 56716 (pro se appellant)

 

Gerad C. Paul, Randall S. Hanson, Camrud, Maddock, Olson & Larson, Ltd., 401 DeMers Avenue, Suite 500, P.O. Box 5849, Grand Forks, ND 58206-5849 (for respondent)

 

            Considered and decided by Lansing, 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

LANSING, Judge

            The district court dismissed with prejudice Tammy Orendorf’s medical-malpractice claim against North Valley Health Center for failure to comply with the expert-affidavit requirements of Minn. Stat. § 145.682 (2006).  On appeal Orendorf maintains that her geographic location and her past history of litigation with an area health-care provider prevent her from complying with the expert-affidavit requirements.  Because the district court did not abuse its discretion in its determination that no factual or legal basis exists to sustain Orendorf’s medical-malpractice action, we affirm. 

F A C T S

            Tammy Orendorf sought treatment for pain in her neck and chest at the North Valley Health Center (NVHC) emergency room in August 2004.  A medical doctor, a physician’s assistant, and three other NVHC employees treated Orendorf and diagnosed her with a gastroesophageal-reflux condition.  The medical doctor provided Orendorf with a prescription to treat her ailment, but Orendorf disagreed with the diagnosis and chose not to take the medicine. 

Orendorf returned to the NVHC emergency room in February 2005, reporting the same symptoms and also indicating that she was suffering from rosacea, a skin condition.  The physician’s assistant provided Orendorf with ointment for the rosacea and also with eye drops. 

In June 2005 NVHC sued Orendorf in conciliation court for nonpayment of her medical bills.  The next month Orendorf sued NVHC and others for medical malpractice associated with her August 2004 and February 2005 visits.  Orendorf alleged that the NVHC professionals had failed to use reasonable care in diagnosing and treating her condition and that her health had deteriorated as a result.  Orendorf’s summons and complaint did not include the affidavit of expert review that is required under Minn. Stat. § 145.682, subds. 2-3 (2006). 

NVHC sent Orendorf a demand for the required affidavit in December 2005.  NVHC had still not received the affidavit in March 2006 and moved the district court to dismiss Orendorf’s claim with prejudice.  The district court held a telephone conference on NVHC’s motion, in which Orendorf contended that she was unable to comply with the expert-affidavit requirement because she had previously sued an area health-care provider, and she believed that other medical professionals in the area would be unwilling or unable to provide an unbiased examination.  The district court granted NVHC’s motion to dismiss, and this appeal then followed.

D E C I S I O N

Under Minnesota law, a medical-malpractice plaintiff must serve an affidavit of expert review on the defendant with the summons and complaint.  Minn. Stat. § 145.682, subd. 2(1) (2006).  The affidavit must state 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., subd. 3(a) (2006).  “Failure to comply with subdivision 2, clause (1), within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case.”  Id., subd. 6(a) (2006).  We review the dismissal of a medical-malpractice claim for noncompliance with the expert-review statute for an abuse of discretion.  Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005).  

            Orendorf does not dispute that her claim required an expert affidavit or that she failed to produce the affidavit following NVHC’s demand.  Instead, Orendorf argues that she would not be able to obtain an affidavit of expert review from the dominant health-care provider in her area because she had previously sued the provider, and she would not be able to obtain an affidavit from an unaffiliated provider because when she previously sought treatment from an unaffiliated provider, the doctor at that clinic referred her to a specialist affiliated with the provider she sued. 

            The district court declined to accept Orendorf’s explanation as a reasonable excuse for failure to obtain the expert affidavit and dismissed her medical-malpractice action.  For three reasons we conclude that the dismissal was not an abuse of the district court’s discretion. 

            First, Orendorf appears to believe that she must be examined and diagnosed by another doctor.  But the affidavit of expert review requires only that another doctor review the facts surrounding her August 2004 and February 2005 emergency-room visits to NVHC to determine whether the attending professionals observed the requisite standard of care.  See Minn. Stat. § 145.682, subd. 3(a) (listing requirements for affidavit of expert review). 

            Second, Orendorf has provided no concrete evidence on the unavailability of doctors who could provide an unbiased affidavit.  Orendorf does not dispute NVHC’s contention that she lives in close proximity to several independent physicians, clinics, and hospitals that are unaffiliated with the provider she previously sued.  Her one example of the referral from an unaffiliated provider to her previous clinic was apparently based on a limitation of professional expertise and is not probative of bias. 

            Third, and finally, failure to comply with the expert-review requirement results in mandatory dismissal.  Id., subd. 6(a).  If a plaintiff fails to comply with the affidavit requirement, the action must be dismissed.  Orendorf failed to provide the required affidavit within the permitted time limit, and the district court, consistent with the statutory requirement, dismissed Orendorf’s medical-malpractice claim. 

            Affirmed.