Hennepin County District Court File No. MP 02-3958
Considered and decided by Anderson, Presiding Judge; Stoneburner, Judge;
and Hudson, Judge.
Minn. Stat. § 145.682 (2002) encourages parties to bring motions to dismiss medical-malpractice actions early in the proceedings, either to eliminate frivolous lawsuits or to give plaintiffs an opportunity to cure any defects prior to trial. Thus, to challenge the sufficiency of a plaintiff's expert affidavit, the defendant should file a timely motion to dismiss pursuant to Minn. Stat. § 145.682, subd. 6 (2002).
The opinion of the court was delivered by: Hudson, Judge
Appellant challenges the district court's dismissal of her medical-malpractice claim against respondent. Appellant contends that respondent's 15- to 17-hour delay in diagnosing and treating her eye infection caused her to lose vision in one eye. Respondent moved to dismiss the action pursuant to Minn. Stat. § 145.682 (2002), contending that appellant's expert affidavit failed to detail a chain of causation. Appellant contested the motion, arguing that respondent's motion was untimely under Minn. R. Gen Pract. 115.03 and the court's scheduling order and that the expert affidavit was substantively sufficient under Minn. Stat. § 145.682. The district court determined that it had the authority to hear the untimely motion and dismissed the case, finding that appellant's expert affidavit failed to meet the substantive requirements of Minn. Stat. § 145.682 and Minn. R. Evid. 702. We affirm.
In the spring of 1999, appellant Leslie Maudsley suffered from advanced glaucoma, which caused her to experience impaired vision in both eyes. In April 1999, Maudsley sought treatment from respondent Jonathan E. Pederson, M.D. Pederson determined that glaucoma surgery (trabeculectomy) was necessary on both of Maudsley's eyes to help prevent future vision loss. Trabeculectomy carries the risk of several complications, including the infection streptococcal endophthalmitis. It is undisputed that streptococcal endophthalmitis is an extremely virulent infection. Indicia of this infection are redness, swelling, pain, mattering or discharge, as well as decreased vision.
On May 27, 1999, Pederson performed surgery on Maudsley's left eye; she experienced no complications from the surgery. On June 17, 1999, Pederson performed surgery on Maudsley's right eye. Maudsley was scheduled for a post-operative check-up appointment on the morning of June 28. Ten days after the surgery, on June 27, 2002, Maudsley called Pederson complaining of problems with her right eye. Maudsley and Pederson agree that Maudsley told Pederson she was experiencing pain and seeing black dots—symptoms consistent with mild and normal post-operative bleeding. But the parties dispute whether Maudsley also told Pederson she was experiencing "intense pain" and an eye "hemorrhage"—symptoms consistent with infection.
Claiming that he believed Maudsley had normal post-operative symptoms, Pederson advised Maudsley to wait and see him at her scheduled appointment the next morning, 15-17 hours later. When she attended her appointment the next morning, Pederson diagnosed the right eye as infected and sent her to a vitreoretinal specialist, who identified the infection as streptococcal endophthalmitits. Maudsley ultimately lost all vision in her right eye. Maudsley claims that the 15- to 17-hour delay in diagnosis caused her vision loss.
Maudsley filed a complaint on May 8, 2001, claiming medical malpractice. On May 31, 2002, Maudsley submitted Dr. Harvey Rosenblum's expert affidavit. Dr. Rosenblum's affidavit gave the following statement on causation:
It is more likely than not that if treatment had been initiated on June 27, rather than June 28, Leslie Maudsley would not have lost the vision in her right eye. She may have suffered some impairment to that vision, but she would not have lost it totally. When infections are present, it is generally true that better outcomes are the result of earlier treatment; in fact every hour counts.
After receiving Dr. Rosenblum's affidavit, Pederson requested that Maudsley supplement the affidavit because it lacked specific information regarding causation. On June 27, 2002, Maudsley submitted an amended affidavit, which added the following sentence: "It is more likely then [sic] not that if treatment had been initiated on June 27, 1999, that Leslie Maudsley would have recovered ...