Ica Cristescu, Appellant, vs. Dr. Michael McGowan, Respondent.

Ica Cristescu, Appellant, vs. Dr. Michael McGowan, Respondent. A06-2455, Court of Appeals Unpublished Decision, November 20, 2007

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-2455
 
 

Ica Cristescu,
Appellant,
 
 vs.
 
Dr. Michael McGowan,
Respondent.

 

 

Filed November 20, 2007

Affirmed

Harten, Judge*

 

Hennepin County District Court

File No. 27-CV-06-2799

 

 

Ica Cristescu, 5240 West 102nd Street, Apt. 221, Bloomington, MN 55437 (pro se appellant)

 

Kelly A. Putney, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402 (for respondent)      

 

            Considered and decided by Dietzen, Presiding Judge; Ross, Judge; and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            Appellant Ica Cristescu challenges the dismissal with prejudice of her dental malpractice claim.  Because we see no abuse of discretion in the dismissal, we affirm.

FACTS

            Appellant worked as a dentist in Romania from 1979 to 1988.  Since 2000, she has been employed by several Minnesota dentists as a dental hygienist and a dental assistant.

            In June 2004, appellant saw an endodontist on an emergency basis, and he successfully treated her tooth.  In August 2005, appellant went to see respondent Dr. Michael McGowan, a restorative dentist, for followup treatment for the tooth.  She experienced chronic pain after this treatment and, in September 2005, returned to the endodontist and also consulted a dentist who was her previous employer.  Several months later, appellant, still having problems with the tooth, again visited the endodontist.  On 6 February 2006, acting pro se, she brought this dental malpractice action against respondent.

            When appellant served and filed her malpractice complaint, she did not provide an affidavit of expert review as required by Minn. Stat. § 145.682, subd. 2 (2004).  The next month, she provided a letter from the endodontist, dated 2 March 2006, which stated that a radiograph showed

what appears to be an inadvertent perforation of a build up core restoration through the thinnest portion of the distal root . . . it is evident that a different material . . . was most likely inadvertently pushed through the root . . . during the build up phase of treatment by her restorative dentist [respondent]. 

The letter did not say that respondent had deviated from the applicable standard of care and thereby caused injury to appellant.

            In July 2006, appellant received a letter from respondent's attorney informing her that: (1) the March 2006 letter from the endodontist did not meet the standards required for an affidavit of expert review set out in Minn. Stat. §145.682, subd. 4; (2) appellant had 45 days to remedy the defect; and (3) if appellant did not comply, respondent would move the district court to dismiss the case with prejudice.  Appellant then procured and submitted a letter written in April 2006 by her former employer, who had examined her in September 2005.  It stated that there could have been a perforation and that appellant should return to the endodontist to confirm the diagnosis of a perforation and also contact respondent.  Like the endodontist's letter, her former employer's letter did not state that respondent had deviated from the applicable standard of care and thereby injured appellant.

            In July 2006, respondent moved to dismiss appellant's complaint.  In response, appellant provided her own affidavit of expert review based on her qualifications as a Romanian dentist.  Her affidavit asserted that her treatment by respondent fell below the applicable standard of care and that she had been injured as a result.

            On 4 October 2006, at the conclusion of the hearing on respondent's motion to dismiss, the district court told appellant that an affidavit of expert review was legally required for a malpractice case and that respondent claimed that none of the documents appellant had submitted met the standards for an affidavit of expert review.  Appellant said she thought that the letter from the endodontist would be sufficient.  The district court said, "I will review that and I will make a decision as to whether or not it is sufficient."  Appellant answered, "If people want some more, I am going to go by myself to [the endodontist] and ask him to put on the paper exactly what he told me . . . ."  The district court replied, "I will review what you submitted . . . and then I will make a decision."

            On 27 November 2006, the district court dismissed with prejudice appellant's case.  In December, she filed a notice of appeal accompanied by a letter claiming that she thought that the district court would consider a second affidavit from the endodontist if she obtained and submitted one.  She also filed a copy of the endodontist's second affidavit, which provided his opinion that respondent "may have" deviated from the applicable standard of care and caused appellant injury.  The endodontist added the words, "may have," to the affidavit and, under his signature, directed the reader's attention to the addition.[1] 

D E C I S I O N

            A district court's dismissal of an action for "procedural irregularities," such as failure to comply with statutory requirements, will be reversed on appeal if it is shown that the district court abused its discretion.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

            Minn. Stat. § 145.682, subd. 3 (2004), requires that, in an action alleging malpractice against a health care provider, the complaint must be accompanied by an affidavit from the plaintiff's attorney stating that the facts of the case have 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.

 

Moreover, the supreme court has indicated that "[s]o as not to undermine the legislative aim of expert review . . . plaintiffs must adhere to strict compliance with the requirements of Minn. Stat. § 145.682."  Boehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 726 (Minn. 2005).   None of the letters appellant submitted expressed the opinion that respondent had deviated from the applicable standard of care and thereby caused injury to appellant. 

            Appellant also submitted her own affidavit.  The district court found that this affidavit did not comply with the statute because

[appellant] is not qualified to testify to the standard of care of an American dentist.  [Appellant] has not attended any U.S. dental schools.  [Appellant] practiced dentistry in Romania more than 20 years ago with a dentist diploma, and attested to the fact she was not and is not a D.D.S.  [Appellant] is a qualified dental hygienist in Minnesota.  Dental hygienists are limited in what they may practice, and are not permitted to perform . . . the dentistry at issue in this case.

 

The district court correctly found that appellant, a dental hygienist, was unqualified to provide an expert affidavit detailing the standard of care required from a dentist.  See id. at 725 (affirming dismissal of claims of malpractice against a thoracic surgeon because "the district court determined that a nurse practitioner was not qualified to provide expert opinion as to the standard of care of a thoracic surgeon").

            Here, the district court also found that:

[Appellant's] affidavit does not set forth a specific standard of care, how this standard of care was breached, and the chain of causation of damages allegedly caused by the breach.  Minn. Stat. § 145.682.  What may be a bad dental result is not enough to prove negligence or malpractice.

 

Again, the district court did not err in finding that appellant's affidavit failed to meet the statutory standard for an affidavit of expert review.

            We conclude that the district court did not abuse its discretion in dismissing with prejudice appellant's dental malpractice action.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]Because this affidavit was never presented to the district court, it is not properly before this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that this court does not generally consider matters not presented to and considered by the district court).  In any event, the affidavit does not meet the statutory criteria for an affidavit of expert review as it states only that respondent "may have" deviated from the applicable standard of care.  See Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 429 (Minn. 2002) (holding that expert affidavit containing "only broad, conclusory statements" did not meet the statutory requirement).