Opinion
No. C9-97-1513.
Filed March 17, 1998.
Appeal from the District Court, Hennepin County, File No. 973972.
Paul-Bryan J. Zenke, (for appellants)
Paul C. Peterson, William L. Davidson, (for respondents Deborah Day, M.D., and Consulting Radiologists, Ltd.)
Kyle M. Thomas, William H. Leary, (for respondents Diane K. Stoller, M.D., and Joseph J. Pietrafitta, M.D., P.A.)
Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Claryce Darling Graham and Joseph Graham appeal from the dismissal of their medical malpractice claims for failure to serve an affidavit of expert review as required under Minn. Stat. § 145.682, subd. 3 (1996). We affirm.
FACTS
On December 27, 1996, the Grahams served respondent Deborah Day, M.D., with a summons and complaint that alleged that Day negligently performed medical procedures on Claryce Graham. On January 10, 1997, the Grahams served respondent Diane K. Stoller, M.D., with a summons and complaint that alleged that she negligently performed a lumpectomy on Graham. On January 8, 1997, the Grahams served Stoller's employer, respondent Joseph J. Pietrafitta, M.D., P.A., with a summons and complaint.
Claims against Day's employer, Consulting Radiologists, Ltd., are not properly before this court because Consulting Radiologists, Ltd. was never served with a summons and complaint.
With each summons and complaint, the Grahams served an affidavit signed by their attorney, which stated that expert review could not reasonably be obtained before the action was commenced because of the applicable statue of limitations, and that an affidavit of expert review would be served within 90 days of the summons and complaint.
On April 9, 1997, the Grahams served upon Day, Stoller, and Pietrafitta, M.D., P.A. the affidavit of David Schultz, M.D., which stated that Day and Stoller failed to meet the applicable standard of care. The district court dismissed all claims for failure to serve an affidavit of expert review within 90 days after service of the summons and complaint. In an amended order, the court acknowledged that it had erroneously concluded that the Grahams had not served an affidavit on Stoller within 90 days after service of the summons and complaint was served. The court concluded that Stoller was still entitled to summary judgment, however, because the affidavit served on her was not the affidavit of the Grahams' attorney.
DECISION
Statutory construction is a question of law which this court may review de novo, but we must affirm dismissal of a medical malpractice action for procedural irregularities unless the trial court has abused its discretion.
Paulos v. Johnson , 502 N.W.2d 397, 399 (Minn.App. 1993), review denied (Minn. Sept. 10, 1993).
Minn. Stat. § 145.682, subds. 2 and 3 (1996) provide:
Subd. 2. Requirement. In an action alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider which includes a cause of action as to which expert testimony is necessary to establish a prima facie case, the plaintiff must: (1) unless otherwise provided in subdivision 3, paragraph (b), serve upon defendant with the summons and complaint an affidavit as provided in subdivision 3; and (2) serve upon defendant within 180 days after commencement of the suit an affidavit as provided by subdivision 4.
Subd. 3. Affidavit of expert review. The affidavit required by subdivision 2, clause (1), must be by the plaintiff's attorney and state that:
(a) the facts of the case have been reviewed by the plaintiff's attorney 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; or
(b) the expert review required by paragraph (a) could not reasonably be obtained before the action was commenced because of the applicable statute of limitations. If an affidavit is executed pursuant to this paragraph, the affidavit in paragraph (a) must be served on defendant or the defendant's counsel within 90 days after service of the summons and complaint.
With the summons and complaint, the Grahams served each defendant with an affidavit stating that expert review could not reasonably be obtained before the action was commenced because of the applicable statute of limitations. Therefore, under Minn. Stat. § 145.682, subd. 3(b), the Grahams were required to serve an affidavit that met the requirements of Minn. Stat. § 145.682, subd. 3(a), within 90 days after service of the summons and complaint.
The only defendant served with an affidavit within 90 days after service of the summons and complaint was Stoller. But the affidavit served on Stoller was not the affidavit of the Graham's attorney. Minn. Stat. § 145.682, subd. 3, requires that the affidavit of expert review be the affidavit of the plaintiff's attorney. The Grahams, therefore, failed to comply with Minn. Stat. § 145.682, subd. 3.
The Grahams argue that the district court erred in dismissing their claims because the respondents moved to dismiss under Minn. Stat. § 145.682, subd. 6 (1996) for failure to serve an affidavit of expert review within 60 days after a demand for the affidavit was made. The Grahams contend that subdivision 6 is inapplicable, and there is no provision for mandatory dismissal for failure to provide an affidavit of expert review within 90 days. We disagree.
In Paulos , 502 N.W.2d at 399, this court concluded that where a plaintiff employs the alternative of an affidavit for delayed filing "delayed filing of the expert review affidavit is governed singularly by the 90 day mandate of subd. 3(b)." This court explained further in Paulos :
When the plaintiff serves the summons and complaint without either affidavit (expert review, or delay), a 60 day demand is a prerequisite for dismissal under subd. 6. But where a summons and complaint is accompanied by an affidavit invoking the alternative for a later filing, * * * dismissal may occur under the 90 day mandate of subdivision 3(b).
Id.
The Grahams disagree with the Paulos decision, arguing that its effect is to give the more experienced medical malpractice plaintiff 90 days to provide an affidavit of expert review, and the inexperienced plaintiff 60 days (because an experienced plaintiff would always serve an affidavit for delay). However, the Paulos decision addresses the Grahams' concern:
We have deliberated on the apparent anomaly of a construction of the statute which compels performance within 90 days by one who furnishes an affidavit for delay, but has no similar absolute rule for one who files no affidavit at all. In the latter circumstance, cause for dismissal would never arise until 60 days after a demand. This, however, is consistent with the evident concern of the legislature that plaintiffs be fully apprised of the expert review laws. If no affidavit is furnished with the complaint, the demand constitutes actual notification to the plaintiff of the statutory requirement. The law then allows another 60 days to comply. For one who knows the requirements of the statute, indicated by the submission of an affidavit for delay, the statute permits compliance within 90 days and requires no demand for compliance.
Id.
Finally, the Grahams claim that they properly served respondents with the most important affidavit, the affidavit of expert identification, which must be submitted within 180 days of service and include details of the substance of each expert's testimony. See Minn. Stat. § 145.682, subds. 2, 4. But the statute requires both the attorney's and the expert's affidavits to be served on defendants. Id. , subd. 2.
The district court did not abuse its discretion in dismissing the Grahams' medical malpractice claims for failure to comply with Minn. Stat. § 145.682, subd. 3.