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Broehm v. Rochester

January 20, 2005



With the exception of plaintiff's nursing malpractice cause of action, dismissal of medical malpractice claims for noncompliance with expert witness disclosure requirements of Minn. Stat. § 145.682 (2004) was not an abuse of discretion.

Denial of plaintiff's motion for an extension of the deadline for expert witness disclosure was not an abuse of discretion where plaintiff failed to show good cause for the extension.

Plaintiff's medical malpractice claim required an expert.

The opinion of the court was delivered by: Anderson, Russell A., Justice.

Special Concurrence, Anderson, Paul H., J.

Concurrence, Page, J.

Took no part, Anderson, G. Barry, J.

Affirmed in part, reversed in part, and remanded for further proceedings.

Heard, considered, and decided by the court en banc.


Appellant brought a medical malpractice action in connection with injury incurred during post-operative care following tracheal resection surgery. The district court granted defendant's motion to dismiss on grounds that appellant had failed to comply with the expert witness disclosure requirements of Minn. Stat. § 145.682 (2004). The court of appeals affirmed, and we granted further review. Concluding that appellant's expert disclosure was sufficient to preclude mandatory dismissal of a nursing malpractice cause of action, we affirm in part, reverse in part, and remand to the district court for further proceedings.

On December 17, 1999, appellant Amy Marie Broehm underwent tracheal resection surgery, performed by Dr. Peter Pairolero, thoracic surgeon and chief of surgery at respondent Mayo Clinic Rochester, for a congenital narrowing of her trachea. The surgery involved removing a one and a half inch section of the trachea where the narrowing had occurred and reconnecting the two sections of the trachea with sutures. Following tracheal resection surgery, the patient's head and neck must be immobilized for two to three days as hyperextension of the neck could cause the separation of the tracheal sutures, resulting in suffocation. One method used by thoracic surgeons to immobilize the head and neck area is to suture the patient's chin to the chest. As an alternative, Dr. Pairolero designed a head restraint and has employed this method "dozens of times" for over 28 years.

The restraint consists of a surgical towel placed against the patient's forehead and secured by two strips of 2-inch-wide surgical tape attached to a headboard. Paul Holland, a physician assistant who worked with Dr. Pairolero and helped in developing the restraint, constructed the device used on Broehm. The usual practice was for Dr. Pairolero's "team" or "service" to mange the care of the device. On December 19, as Broehm began to recover from sedation, she complained of a headache and pain in her forehead. According to Broehm's medical chart, at noon the "primary s[ervice]" removed the restraint and observed an abraded area on Broehm's forehead. Triple antibiotic medication ointment was applied to the abraded area and the restraint was "redone to remove pressure from [the] site." A plastic surgeon was consulted who recommended additional ointments and gels for the wound, noting that it would heal without difficulty. The wound, however, did not heal properly and left a permanent scar on Broehm's forehead.

Broehm commenced an action against Mayo on July 31, 2001, alleging medical malpractice. As required under Minn. Stat. § 145.682, subds. 2, 3 (2004), Broehm served Mayo with an affidavit of expert review on the day that the suit was filed. Additionally, on January 21, 2002, within the 180-day period required under Minn. Stat. § 145.682, subd. 4 (2004), Broehm served Mayo with an expert witness disclosure signed by Linda Wick, R.N., C.N.P. On January 28, 2002, the last day of the 180-day time period, Broehm filed a motion to extend the 180-day deadline.

Mayo opposed the motion for extension and moved to dismiss Broehm's claim. The extension and dismissal motions came on for hearing on March 20, 2002. On April 9, 2002, without the district court's permission, Broehm submitted a "supplemental memorandum," seeking to preserve the position that expert disclosure was not required because Broehm would be entitled to a res ipsa loquitur jury instruction. In an attachment to the memorandum, Broehm submitted an expert disclosure identifying a plastic surgeon and summarizing his opinion. The district court, without considering the newly filed submissions, denied Broehm's motion for an extension and granted Mayo's motion to dismiss. The court found that Broehm had failed to demonstrate good cause for an extension and had failed to comply with the requirements of Minn. Stat. § 145.682.

On appeal, the court of appeals affirmed by panel majority. The court of appeals initially considered and rejected Broehm's claim that no expert testimony was required. The court then affirmed the procedural dismissal, concluding that Wick was not qualified to provide expert opinion as to the applicable standards of care as required by Minn. Stat. § 145.682. The court affirmed the denial of an extension, concluding that Broehm had adequate time to comply with the expert-disclosure deadline and failed to show good cause for the requested extension. The dissenting panel member believed that while expert testimony would likely be necessary at trial, it was not required at the preliminary stage to show a prima facie case of medical malpractice.


In a medical malpractice action, Minn. Stat. § 145.682 requires that with service of the summons and complaint, plaintiff's attorney must also serve an affidavit stating that the case has been reviewed 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., subds. 2, 3. Within 180 days of commencement of suit, plaintiff must serve upon defendant affidavits signed by each expert that plaintiff expects to call at trial stating, with respect to issues of malpractice or causation, the substance of the facts and opinions to which the expert expects to testify and a summary of the grounds for each opinion. Id., subd. 4(a). Interrogatory answers may be used in lieu of affidavits so long as they are signed by the expert and plaintiff's attorney. Id. Noncompliance with the statutory requirements results in dismissal with prejudice. Minn. Stat. § 145.682, subd. 6 (2004).*fn1

Here, in dismissing Broehm's complaint for failure to comply with expert disclosure, the district court determined that a nurse practitionerwas not qualified to provide expert opinion as to the standard of care of a thoracic surgeon. We will reverse a district court's dismissal of a malpractice claim for noncompliance with expert disclosure only if the district court abused its discretion. Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn. 2002).

In an effort to reduce the costs associated with malpractice litigation as a means to increase the availability of reasonably priced medical insurance, nearly every state has enacted some measure of medical malpractice litigation reform. Mitchell J. Nathanson, It's the Economy (and Combined Ratio) Stupid: Examining the Medical Malpractice Litigation Myth and the Factors Critical to Reform, 108 Penn. St. L. Rev. 1077, 1077 n.1 (2004). The Minnesota legislature enacted expert-review and expert-disclosure requirements as a means of readily identifying meritless lawsuits at an early stage of the litigation. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190-91 (Minn. 1990) (noting that "the legislature contemplated procedural reform directed at elimination of 'frivolous cases'" in adopting the statute). "[N]notice of claim and certificate of merit provisions are not as intrusive as more elaborate malpractice [screening] panels seen in other states * * *." Thomas J. Hurney, Jr., Medical Professional Liability in West Virginia, 105 W. Va. L. Rev. 369, 385 n.115 (2003). Certificate of merit requirements have proven more effective than other malpractice reform mechanisms, such as arbitration panels and capping of damages, in "reducing insurers' litigation costs without significant social costs." Nathanson, supra at 1079.

So as not to undermine the legislative aim of expert review and disclosure, we have stressed that plaintiffs must adhere to strict compliance with the requirements of Minn. Stat. § 145.862. See Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577-78 (Minn. 1999) (statutory requirements are "uncomplicated and unambiguous" and contemplate strict compliance). Plaintiffs are "expected to set forth, by affidavit or answers to interrogatories, specific details concerning their experts' expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them." Sorenson, 457 N.W.2d at 193. We have made plain that "broad and conclusory statements as to causation" and "empty conclusions" are insufficient. Anderson v. Rengachary, 608 N.W.2d 843, 847-48 (Minn. 2000) (expert affidavit failed to set forth standard of care, did not identify acts or omissions that violated standard of care and made no attempt to outline chain of causation resulting in injury); Lindberg, 599 N.W.2d at 578 (expert affidavit failed to state how health care providers departed from standard of care, failed to recite facts upon which expert would rely as a basis for expert opinion and failed to outline a chain of causation); Stroud v. Hennepin County Med. Ctr.,556 N.W.2d 552, 556 (Minn. 1996) (expert affidavit provided only broad, conclusory statements as to causation and did not provide outline of chain of causation between alleged violations of standard of care and claimed damages, merely opining that delay in diagnosis resulted in complicated hospital stay).

The expert disclosure requirements cannot be met by a witness who is not qualified to give an expert opinion. Teffeteller, 645 N.W.2d at 427 (expert not specialized in field of pediatric oncology or experienced with bone marrow transplants not qualified to submit expert affidavit as to customary response for physicians treating pediatric bone marrow transplant patients); Wall v. Fairview Hosp. and Healthcare Servs., 584 N.W.2d 395, 405 (Minn. 1998) (psychologist and psychotherapist not qualified to provide expert opinion about the appropriate standard of care for a psychiatric nurse); cf. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977) (expert medical witnesses must have both sufficient scientific knowledge and practical experience with respect to subject matter of the offered testimony).

We have been firm in holding that failure by the plaintiff to strictly satisfy the requirements under Minn. Stat. § 145.682, subd. 4(a) results in dismissal of the claim with prejudice. Teffeteller, 645 N.W.2d at 430-31 (dismissal of malpractice action mandated where expert disclosure contained only broad and conclusory statements); Anderson, 608 N.W.2d at 848 (dismissal mandated where expert disclosure clearly failed to fulfill the statutory requirements); Lindberg, 599 N.W.2d at 578 (dismissal mandated where expert disclosure falls short of the substantive disclosure requirements).

Here, the district court found that Broehm's expert disclosure did not satisfy the requirements of Minn. Stat. § 145.682 because it failed to identify an expert qualified to testify to the applicable standards of care. The Wick disclosure set forth four duties that Mayo allegedly owed Broehm and that Wick claimed were breached:

1. Obtain her informed consent to the use of a head restraint device that had a foreseeable risk of causing a permanent wound and scarring to her forehead if, such was a known or foreseeable risk.

2. Construct a head restraint device that did not cause a wound injury or, alternatively, employ an alternative technique to immobilize the head.

3. Inspect skin integrity and the restraint device as though it were a dressing at regular intervals, no less often than once each 8 hour nursing shift or more often if medically indicated.

4. Seek appropriate specialty care to diagnose and treat the patient's forehead wound immediately upon discovery of the wound.

Wick received her baccalaureate degree in nursing in 1984 and earned a master's degree in 1995. She is a certified geriatric nurse practitioner and is currently employed at St. Mary's Duluth Clinic, principally in the nephrology department. As the lower courts concluded, Wick has neither the training nor the practical experience necessary to offer opinions regarding postoperative care following tracheal resection surgery in support of claims based on the first two asserted duties; and the expert disclosure does not indicate that Wick has sufficient practical experience to qualify her as an expert in support of a claim based on the asserted duty to seek appropriate specialty care. The dismissal of those claims was not an abuse of discretion.

Wick does, however, appear to have sufficient training and practical experience with respect to general nursing care duties and duties of a nurse practitioner sufficient to qualify her as an expert in support of a claim based on a nursing standard of care. Thus, while the claims of failure to obtain informed consent, failure to construct an appropriate head restraint, and failure to seek appropriate specialty care upon discovery of the wound were properly dismissed by ...

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