Ann M. Firkus, Appellant,
Dana J. Harms, MD, Respondent.
Hennepin County District Court File No. 27-CV-17-874
Nicholas Henry, Nicholas Henry Law, LLC, (for appellant)
R. Whitmore, Amie E. Penny Sayler, Bassford Remele, P.A, (for
Considered and decided by Reyes, Presiding Judge; Schellhas,
Judge; and Jesson, Judge.
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.
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.
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. 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.
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.
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. 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
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.
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