James R. Gowling, Geraghty, O'Loughlin & Kenney, P.A., 1400 Capital Centre, 386 N. Wabasha St., St. Paul, MN 55102 (for Respondent)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Holtan, Judge.[*]

On appeal from adverse summary judgment, appellant argues that his expert's report sufficiently established a prima facie case of medical malpractice. We affirm.

Decedent suffered from several maladies, including bipolar disorder, adult-onset diabetes, and anemia. In December 1993, during an extended hospitalization, she was diagnosed as suffering from bibasilar pneumonia. After being discharged to a nursing home, she was again hospitalized on December 28, suffering from profound weakness and loss of appetite. A chest x-ray upon hospital admittance revealed that decedent still had pneumonia. Her attending physician requested psychological and neurological consultations in an attempt to determine the cause of her condition.

On December 29, respondent, who is board certified in neurology, performed a neurological examination on decedent. Although respondent knew that decedent recently had been treated for bibasilar pneumonia, he concluded that

patient most likely has functional weakness. I think her major problem is her psychiatric illness. She is severely depressed and her prognosis is certainly guarded.

Decedent died in the hospital on December 31, and her autopsy reports indicated that the cause of her death was "respiratory insufficiency which was secondary to a severe acute bronchial pneumonia."

In support of his malpractice claim against respondent, appellant relied solely on a one-page letter from Horace B. Thompson, M.D., who summarized his medical opinion as follows:

I believe this patient's care fell below the acceptable standard of care for December, 1993, because there was never any documentation of arterial blood gases to determine if she was hypoxic nor were there repeat chest x-rays to follow up on the admission chest x-ray that definitely showed pneumonia. Even though the autopsy did not show any evidence of pulmonary embolism, certainly this type of patient with bilateral lower lobe infiltrates should raise the possibility of this condition and none of her attending physicians entertained this possibility, which can also cause leukocytosis and pneumonia.

Respondent moved for (1) summary judgment and (2) dismissal with prejudice for failure to provide an expert affidavit sufficient to establish a prima facie case of medical malpractice. The district court granted both motions and summary judgment was entered against appellant.

To establish a prima facie case of medical malpractice, a plaintiff must introduce expert testimony demonstrating (1) the standard of care recognized by the medical community as applicable to the particular defendant; (2) that the defendant departed from that standard; and (3) that the defendant's departure was a direct cause of the plaintiff's injuries.

Fabio, 504 N.W.2d at 762 (citing Plutshack v. University of Minn. Hosp., 316 N.W.2d 1, 5 (Minn. 1982)). In order to establish a prima facie case of causation, the plaintiff must present expert testimony establishing it to be more probable than not that damages resulted from the defendant's malpractice. Id.

Dr. Thompson's opinion as to the standard of care did not specifically address the actions of respondent in his role of neurology consultant; Dr. Thompson simply believed that the acceptable standard of care was not met because of the failure to obtain arterial blood gases and repeat chest x-rays. A physician, however, is entitled to be judged according to the standards and principles of his or her particular school of practice. Nelson v. Dahl, 174 Minn. 574, 576, 219 N.W. 941, 942 (1928).

Appellant's expert failed to articulate (1) the standard of care applicable to neurologists, (2) whether respondent, as a consulting neurologist, had any duty to order tests unrelated to neurological disorders, and (3) that any departure by respondent from the standard of care was a direct cause of decedent's injuries. It is irrelevant that appellant's expert and respondent are both board certified in internal medicine. In his deposition, respondent admitted that he does not practice internal medicine and is not qualified to be an internist. Respondent provided care only as a consulting neurologist at the request of the attending physician.

In his deposition, respondent admitted knowing that decedent suffered from bibasilar pneumonia, but felt that her primary problem was a "major psychiatric disorder." Appellant argues that respondent negligently diagnosed the cause of decedent's illness as mental, not physical. Nevertheless, it is undisputed that decedent's attending physician was aware that decedent suffered from pneumonia. Appellant's expert fails to explain how the attending physician's alleged reliance on respondent's "misdiagnosis" resulted in decedent's deterioration and death. As noted by the supreme court:

Proof of causation cannot rest on conjecture and the mere possibility of such causation is not enough to sustain the plaintiffs' burden of proof.

Walton v. Jones, 286 N.W.2d 710, 715 (Minn. 1979) (quoting Walstad v. University of Minn. Hosp., 442 F.2d 634, 639 (8th Cir. 1971)). See Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555-56 (Minn. 1996) ("medical expert affidavit, which contained broad, conclusory statements as to causation," failed to meet requirements of statute regarding plaintiff's affidavit of expert identification). Moreover, although Dr. Thompson suggests that more intensive therapy "possibly" may have benefitted decedent, he does not declare that it is more probable than not that decedent's injuries directly flowed from the failure to transfer her to intensive care. See Fabio, 504 N.W.2d at 762 (requiring "more probable than not" standard for causation).

We conclude that appellant failed to produce adequate competent expert testimony to establish a prima facie case of medical malpractice against respondent. The district court correctly granted summary judgment in favor of respondent.

2. The district court also dismissed appellant's lawsuit for failure to provide a legally sufficient expert affidavit under Minn. Stat. § 145.682, subds. 2, 4 (1996). Because both summary judgment and the mandatory dismissal under the statute result in dismissal with prejudice, we need not address whether the district court abused its discretion in dismissing the action for failure to comply with the statute. See Stroud, 556 N.W.2d at 555-56 (reviewing whether district court abused its discretion in dismissing medical malpractice lawsuit for legally insufficient expert affidavit). We note, however, that an analysis of the statutory requirements would lead invariably to the same conclusion. See id. (outlining the requirements of a legally sufficient expert affidavit).

Affirmed.

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