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Firkus v. Harms

Court of Appeals of Minnesota

April 30, 2018

Ann M. Firkus, Appellant,
v.
Dana J. Harms, MD, Respondent.

          Hennepin County District Court File No. 27-CV-17-874

          Nicholas Henry, Nicholas Henry Law, LLC, (for appellant)

          Mark R. Whitmore, Amie E. Penny Sayler, Bassford Remele, P.A, (for respondent)

          Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Jesson, Judge.

         SYLLABUS

         Under the expert-review statute, Minn. Stat. § 145.682 (2016), plaintiffs must file an affidavit of expert identification in medical malpractice cases within 180 days of the "commencement of discovery." For purposes of this statute, discovery commences no later than the date of a discovery conference pursuant to Rule 26.06, or 30 days after the answer is initially due, whichever is earlier.

          OPINION

          JESSON, JUDGE.

         Appellant Ann Firkus served her medical-malpractice complaint, and a little over a month later, respondent Dr. Dana Harms served his answer. Months passed. There were no additional pleadings, motions, or discovery. Approximately eight months after the complaint was served, Harms informed Firkus that the statutory 180-day period to file the necessary affidavit of expert identification had expired. The district court agreed and dismissed the case, rejecting Firkus's argument that the time period did not commence, or that even if it did, the failure to file the affidavit was excusable neglect. We affirm in part, reverse in part, and remand.

         FACTS

         On March 4, 2016, appellant Ann Firkus served-but did not file-a complaint alleging medical malpractice against respondent Dr. Dana Harms. Harms served his answer on April 15, 2016, denying all allegations.[1] A few weeks later, Harms's attorney requested that Firkus provide signed authorization forms to allow the release of medical records, stating:

I am just starting to look into your client's claims. Although it would be addressed in formal written discovery, because it takes some time to request and receive medical records, in these types of cases the Plaintiff will often provide authorizations to allow us to obtain her medical records prior to formal discovery.

         On April 29, 2016, Firkus's attorney requested that she sign these forms. And on May 18, 2016, Firkus's attorney informed Harms's attorney that she was still working on gathering a list of her providers and completing the forms.

         After these initial communications, activity in this case came to a halt. The medical authorization forms were not completed. Months passed, and on November 30, 2016, Harms's attorney e-mailed Firkus's attorney requesting a stipulation to dismissal, stating that the deadline to serve the affidavit of expert identification, pursuant to the expert-review statute, had expired. See Minn. Stat. § 145.682, subd. 2. An affidavit of expert identification is required in cases in which expert testimony is necessary to establish a prima facie case, and it must be served within 180 days after discovery commences.[2] Id. Failure to comply with this statutory provision 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(b) (2016). Firkus's attorney e-mailed back on December 2, 2016, stating that because discovery never formally started, the time limit for the affidavit of expert identification had not yet begun to run. Firkus's attorney also explained that the delay in providing the authorization forms was due to issues relating to Firkus's attention-deficit disorder and an unexpected knee surgery.

         On January 23, 2017, Harms filed the case with the district court. And a week later, Harms filed a motion to dismiss on the ground that Firkus failed to serve an affidavit of expert identification within the 180-day period. Then on February 17, 2017, Firkus sent Harms the requested authorizations and an affidavit of expert identification.

         The motion-to-dismiss hearing occurred in April 2017, and the district court granted Harms's motion to dismiss the following month. The district court found that neither attorney did anything to progress the case toward formal discovery, both attorneys were to blame for the delay, and both failed their duty to their clients to effectively manage the case. But despite finding both attorneys were to blame, the district court found that "ultimately Ms. Firkus's attorney failed to move this case forward." The district court accepted Harms's argument that either "informal discovery" started when he requested medical authorization forms, or that formal discovery started once ...


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