State of Minnesota, Respondent, vs. Stephen Danforth, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-959

 

 

Amy Marie Broehm,

Appellant,

 

vs.

 

Mayo Clinic Rochester,

Respondent.

 

 

Filed March 11, 2003

Affirmed; motion granted

Halbrooks, Judge

Dissenting, Schumacher, Judge

 

 

Olmsted County District Court

File No. CX012827

 

Gerald J. Brown, Brown, Andrew & Signorelli, P.A., 300 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)

 

Thomas S. Fraser, Ann E. Decker, James R. Mayer, Lora Esch Mitchell, Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 6th Street South, Minneapolis, MN 55402-1425; and

 

Trudi Noel Trysla, Mayo Clinic Rochester, 200 1st Street S.W., Rochester, MN 55905 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Amy Marie Broehm challenges the dismissal of her medical-malpractice claim against respondent Mayo Clinic, arguing that the district court abused its discretion by (1) concluding that she failed to comply with the expert-disclosure requirements of Minn. Stat. § 145.682 (2002) and (2) denying her motion to extend the deadline for expert disclosure.  Respondent moved to strike certain submissions from appellant on the ground that they were outside the record.  Because we conclude that the district court acted within its discretion and that the submission was not part of the record on appeal, we affirm and grant respondent's motion.

FACTS

In December 1999, Peter Pairolero, M.D., a thoracic surgeon at respondent Mayo Clinic, performed tracheal-resection surgery on appellant Amy Marie Broehm.  The surgery involved removing a 1.5-inch narrowed section of appellant's trachea and suturing the two ends together.  Following this procedure, a patient's head must be completely immobilized for up to three days to maintain the integrity of the sutures and prevent lethal tracheal separation.  To ensure head immobility, Dr. Pairolero and his assistant have designed a restraint consisting of a towel secured to the patient's forehead with two-inch adhesive tape that is then tightly fastened to either side of the bed in which the patient is lying.  Dr. Pairolero has constructed or supervised the construction of dozens of such restraints over nearly 30 years of performing tracheal resections.  Here, immediately following a successful surgery, Dr. Pairolero had his physician's assistant construct and apply appellant's restraint and gave instructions that the nursing staff was not to touch the restraint.  When Dr. Pairolero removed the restraint three days after surgery, he observed an injury measuring approximately 4 inches by .5 inches to appellant's forehead.  The injury became a permanent scar.

            Appellant brought a medical-malpractice claim in July 2001, alleging negligence in respondent's construction and application of the head restraint.  As required by Minn. Stat. § 145.682, subds. 2, 3 (2002), the claim was accompanied by an affidavit stating that an expert qualified to testify at trial had reviewed the claim and believed that respondent's negligence had caused appellant's injury.  Minn. Stat. § 145.682, subd. 4(a) (2002), required that within 180 days after filing the claim, appellant serve respondent with a disclosure specifying which experts would testify at trial on her behalf, the substance of their testimony, and a summary of the grounds for their opinions.  The 180-day deadline was January 28, 2002.

Appellant timely submitted an affidavit disclosing the opinion of Linda Wick, a certified geriatric nurse practitioner specializing in nephrology.  Wick stated that respondent owed appellant, and breached, various duties related to the construction, use, and inspection of the head restraint.  Three days before the 180-day deadline, appellant moved to extend the deadline, arguing that she needed to conduct further discovery concerning the head restraint and obtain additional expert opinions concerning the cause of her injury. 

After the deadline passed, respondent moved for statutory dismissal on the ground that Wick, appellant's proffered expert, was not qualified to testify about the standard of care owed by appellant's surgeon.  See Minn. Stat. § 145.682, subd. 6(c) (2002) (mandating dismissal of medical-malpractice claims with prejudice for failure to comply with the expert-disclosure requirements of section 145.682). 

While both motions were pending, appellant filed a "supplemental memorandum" with the district court, arguing that no expert testimony was necessary to establish respondent's liability and requesting a jury instruction on the theory of res ipsa loquitur.  Appellant also submitted an expert affidavit from William Portilla, M.D., a plastic surgeon, stating his opinion that respondent's negligence had caused appellant's injury.  The district court refused to consider these submissions on the ground that they were untimely. 

The district court denied appellant's motion to extend the expert-disclosure deadline on the ground that appellant had failed to show good cause for the extension.  The court granted respondent's motion for statutory dismissal, reasoning that appellant had failed to comply with the expert-disclosure requirements of Minn. Stat. § 145.682 (2002) because appellant's expert, an R.N., was not qualified to testify to the standard of care applicable to thoracic surgery.  This appeal follows. 

D E C I S I O N

I.

 

Appellant argues that no expert testimony was required here and that the expert-witness disclosure requirements of Minn. Stat. § 145.682 (2002) are not implicated, because the standard of care applicable to respondent's postoperative use of the head restraint is a matter within the experience and common knowledge of average people.  See Tousignant v. St. Louis County, 615 N.W.2d 53, 60 (Minn. 2000) (holding that no expert testimony is required where an understanding of the applicable standard of care and deviation from that standard are within the common knowledge of the average juror); Sorenson v. St. Paul Ramsey Med. Ctr., 444 N.W.2d 848, 852 (Minn. App. 1989) (stating that section 145.682 only applies to those medical-malpractice actions "as to which expert testimony is necessary to establish a prima facie case"), aff'd as modified, 457 N.W.2d 188 (Minn. 1990) (modifying on other grounds).  Appellant further contends that, because she is alleging postoperative malpractice, and not surgical malpractice, her claim need not be supported by testimony addressing the standard of care owed by Dr. Pairolero.

The district court declined to consider this argument as untimely.  We generally will not address issues not considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We believe, however, the interest of justice requires that we address this dispositive question of law here, for if expert testimony was unnecessary, section 145.682 was inapplicable to appellant's claim, and the district court's statutory dismissal was error as a matter of law.  See Minn. R. Civ. App. P. 103.04 (providing appellate court may "review any other matter as the interest of justice may require"); Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 403 (Minn. 2000) (agreeing to consider a dispositive legal question first raised on appeal).   

Whether expert testimony is necessary to establish a prima facie case of malpractice is a question of law, which we review de novo.  Tousignant, 615 N.W.2d at 58.  "[E]xpert testimony is generally required to establish the standard of care and the departure from that standard for the conduct of physicians."  Id. at 58 (citation omitted).  Only "exceptional" medical malpractice cases do not require expert testimony to establish a prima facie case.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 191 (Minn. 1990); see also Haile v. Sutherland, 598 N.W.2d 424, 428 (Minn. App. 1999) (stating that "expert testimony is necessary to support all but the most obvious medical malpractice claims.").  We note that no Minnesota court has yet ruled on whether expert testimony is typically required to establish a standard of postoperative care.  Cf. Mazzone v. Holmes, 557 N.E.2d 186, 194 (Ill. App. Ct. 1990) (stating that "[p]ost-operative care is generally not within the common knowledge of lay persons").      

            We disagree with appellant's contention that the standard of care arising from her surgery did not extend to her postoperative care.  The record is clear that the ultimate success of appellant's surgery depended on specialized postoperative care under the strict personal supervision of her surgeon, whose conduct incorporated his knowledge of the lethal risks and postsurgical procedures specifically associated with tracheal resections.  A familiarity with these risks and procedures is clearly beyond the common knowledge of lay people.  Appellant argues that no expert need testify to Dr. Pairolero's conduct because the physician's assistant actually constructed and placed appellant's restraint.  But the assistant's participation was purely ministerial; the discretionary decisions concerning appellant's postoperative care, including the instruction that no nurses were to touch the restraint, were made by the surgeon. 

            We, therefore, also disagree with appellant's contention that her challenge to the adequacy of her postoperative care did not require expert medical testimony.  Despite her attempt to characterize her postoperative care as non-medical, appellant's claim in fact alleged medical malpractice arising from negligent postoperative care.  In the absence of expert testimony, a jury possessing common knowledge or experience would not be in an adequate position to assess whether, and to what extent, respondent breached any duty resulting from use of the restraint.  Appellant's claim required testimony from a medical expert to establish the applicable standard of care and respondent's liability. 

II.

            Appellant next argues the district court abused its discretion by dismissing her claim with prejudice for failure to identify an expert qualified to testify to the applicable standard of care as required by Minn. Stat. § 145.682.  We will reverse a district court's determination as to expert qualification "only if there has been a clear abuse of discretion."  Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn. 2002). 

A medical-malpractice complaint must be accompanied by an "affidavit of expert review" from an expert whose qualifications "provide a reasonable expectation that the expert's opinions could be admissible at trial."  Minn. Stat. § 145.682, subd. 3.  Expert medical witnesses must have both sufficient scientific knowledge and practical experience with respect to the subject matter of the offered testimony as well as "a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant."  Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977) (quotations omitted).  An expert witness in a malpractice case must make a substantial showing of qualification in the particular area necessary to support the claims at issue in the suit.  Swanson v. Chatterton, 281 Minn. 129, 140, 160 N.W.2d 662, 669 (1968).  A plaintiff's failure to comply with the expert-disclosure requirement entitles a defendant to dismissal with prejudice of each of the claims for which expert testimony is required.  Minn. Stat. § 145.682, subds. 2, 4, 6; see also Lindberg v. HealthPartners, Inc., 599 N.W.2d 572, 578 (Minn. 1999) (noting that although section 145.682 "may have harsh results in some cases, it cuts with a sharp but clean edge"). 

Here, appellant's expert was a certified geriatric nurse practitioner who never attended medical school, received any surgical training, observed or assisted a tracheal resection, or administered postoperative care following a tracheal resection.  Although no Minnesota court has ruled on whether a nurse is qualified to testify to a surgeon's standard of care, both this court and the supreme court have consistently excluded proffered expert testimony when the expert's training, education, or practical experience were not narrowly tailored to the applicable standard of care.  See, e.g., Wall v. Fairview Hosp. and Healthcare Servs., 584 N.W.2d 395, 405 (Minn. 1998) (holding a psychologist and a psychotherapist not competent to testify about the appropriate standard of care for a psychiatric nurse).

Appellant's surgeon exercised strict control over the postoperative procedure here and instructed the nursing staff not to disturb the head restraint.  We cannot conclude that appellant's expert was competent to testify to the appropriate standard of care concerning the restraint's construction and placement.  The district court did not abuse its discretion by concluding that appellant's expert was not competent to testify about the appropriate standard of respondent's postoperative care.

III.

            Appellant argues the district court abused its discretion by denying her motion to extend the 180-day expert-disclosure deadline for failure to show good cause.  We review a district court's decision to deny an extension of time to comply with section 145.682 for an abuse of discretion.  Lindberg,599 N.W.2d at 579.

Section 145.682, subd. 4(b), provides that a plaintiff may extend the expert-disclosure deadline "by order of the court for good cause."  Anderson v. Rengachary, 608 N.W.2d 843, 849 (Minn. 2000).  Appellant underwent tracheal-resection surgery in December 1999.  She obtained a certified copy of her medical records in October 2000 and filed her claim in July 2001.  She deposed the surgeon and his physician's assistant in November 2001.  Three days before the 180-day expert-disclosure deadline, appellant moved for an extension, arguing that (1) she needed time to obtain additional expert testimony because respondent had thus far failed to explain the cause of her injury, and (2) she needed further information about the construction of the restraint device.

The district court denied the motion, reasoning that respondent was under no obligation to provide opinions on causation beyond those provided in discovery and all relevant necessary information concerning the restraint was obtained when appellant deposed her surgeon and his assistant, who together had exhaustive knowledge of the restraint's design and placement. 

The record supports the district court's denial.  At the time of the hearing on her motion, appellant had been in possession of the relevant medical records for more than a year.  The medical treatment that appellant alleges was negligently provided occurred two years before the date of the hearing.  Appellant had adequate time to comply with the expert-disclosure deadline and failed to show good cause for the requested extension.  The district court did not abuse its discretion by denying appellant's motion to extend the deadline.

IV.

            After appellant filed her appeal to this court, respondent brought a motion to strike from the record on appeal materials and arguments based on appellant's "supplemental memorandum," including Dr. Portilla's affidavit and appellant's argument that no expert disclosure was necessary to establish respondent's liability.  The district court declined to consider the memorandum on the ground that it was untimely.  The arguments contained in it are, therefore, outside the record on appeal.  See Minn. R. Civ. App. P. 110.01 (stating that the papers filed in the trial court shall constitute the record on appeal).  Generally, we strike materials in a party's submissions that are not part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993). 

We agree with respondent that the affidavit and the argument are not properly before this court.  Therefore, except to the limited extent that we earlier considered, and rejected, appellant's argument concerning her need to comply with the expert-disclosure requirement, we strike from the record on appeal those arguments made by appellant that were not in the record before the district court.

            Affirmed; motion granted.

ROBERT H. SCHUMACHER, Judge (dissenting)

I respectfully dissent. I believe that appellant's claim did not require expert testimony to establish a prima facie case of medical malpractice under Minn. Stat. § 145.682 (2002). I would remand this matter to the district court for a trial on the merits.

"To establish a prima facie case, [appellant] needed to make an initial showing of all the elements of a medical malpractice claim."  Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000).  "Prima facie negligence means that evidence * * * which suffices to establish the fact unless rebutted, or until overcome, by other evidence.  Id. (emphasis omitted), (quoting Trudeau v. Sina Contracting Co., 241 Minn. 79, 87, 62 N.W.2d 492, 498 (1954) (citation omitted)).  

I agree with the majority's determination that expert medical testimony would likely be necessary at trial to establish the applicable standard of appellant's postoperative care.  But that determination is not dispositive at this stage in the proceeding, because "[t]o establish a prima facie case, [appellant] does not need to show that she can prevail on this issue at trial without expert testimony."  Id. at 60.  Appellant was solely required to "adduce facts which, if believed, establish the elements of a medical malpractice claim."  Id.  A successful medical malpractice claimant must show (1) the applicable standard of care; (2) defendant's breach of that standard; (3) that defendant's breach caused the claimant's injury; and (4) damages.  Id. at 59. 

Although the actual cause of appellant's forehead injury is unknown, there is no dispute here that appellant sustained the injury while the postoperative head restraint was in place.  For the purposes of a prima facie analysis, no specialized medical knowledge is required to establish that permanent injury to a patient's forehead is not a reasonably foreseeable result of tracheal resection surgery.  See Todd v. Eitel Hospital,  306 Minn. 254, 260, 237 N.W.2d 357, 361 (1975) (holding that no expert testimony is required in a medical malpractice case where the claimant has suffered an "unexplained injury to a healthy part of the body remote from the treatment area").  I believe that appellant adduced sufficient evidence supporting a prima facie case that was within the knowledge and experience of a lay person.  

The majority concludes that appellant's claim required expert testimony because respondent exercised medical judgment in administering postoperative care.  But respondent's exercise of medical judgment "does not necessarily mean that [appellant] did not establish a prima facie case."  Tousignant, 615 N.W.2d at 59.  The necessity of medical judgment is properly raised in the context of respondent's counter-argument to justify its deviation from the standard of care articulated in Linda Wick's affidavit.  Whatever the merits of respondent's contention that appellant's postoperative care required medical judgment, that contention properly relates to respondent's rebuttal of appellant's prima facie allegation, not to whether appellant established a prima facie case.  See id. 

            I therefore believe that no expert testimony was required for appellant to proceed to trial.

This conclusion does not mean that expert testimony may not at some point be necessary to refute evidence presented by respondents at trial; however, it was not necessary in this case to establish a prima facie case.

 

Id. at 60.