*1 delay evaluating bitrary, in Z.S.’s case. pellant’s capricious, unreasonable be- that appellant’s therefore conclude We cause the issuance of an admonition in this diligent neither representation of Z.S. was alternative, case was excessive. Inthe nor reasonable. appellant argues that an admonition is not appropriate any because violation óf our appellant also conclude that We professional conduct rules was de minimus. keep reasonably informed failed Z.S. case, in about the status of her violation of upon Based our- review of the facts in case, appellant’s Rule 1.4. As with failure to act this we conclude that there is no diligence representing with reasonable upon which to the-pan conclude that basis Z.S,, the fact that the statute of el’s affirmance the Director’s limitations admoni expire years not for over four arbitrary, does tion was capricious, or unreason fact, failing basis for to inform able. we believe that on -the facts Appel Z.S. about the status of her case. presented it would not have been unrea argument lant’s that his failure to contact sonable for the Director to have recom because of his con Z.S. reasonable mended and panel to have affirmed a hiring expense private cerns about the more disciplinary because, severe sanction investigator to locate Z.S. Florida has although the conduct giving rise to Z.S.’s Appellant no merit. had current complaint Z.S.’s was isolated and not as serious simply email address. Had he misconduct, emailed as some it was nonetheless Z.S., However, he would have been able locate her serious. we are satisfied that immediately. the isolated appellant’s nature of conduct counsels favor of an admonition. There indicate, lawyer As Rules 1.3 and 1.4 fore, we affirm the admonition of appellant required diligence to “act with reasonable * * * for his violation of Minn. R. Prof. Conduct representing a client” and to Rules 1.3 and 1.4. “keep reasonably the client informed about case, the matter.” In this appellant failed Affirmed. A
to do either. client a case of this type should not have to wait more than 25 get preliminary analysis months to attorney viability potential on the of a claim. Nor should the client have to wait just.short of an additional months to analysis. a final Having paid ap-
receive $5,000 retainer, pellant Z.S. was entitled Amy BROEHM, Appellant, Marie prompt to and should have received a as- Thus, sessment of her case. She did not. appellant
we conclude that violated Rules ROCHESTER, MAYO CLINIC 1.3 and MRPC. Respondent. No. C0-02-959.
III. Having appellant concluded that vi Supreme Court of Minnesota. 1.4, MRPC, olated Rules 1.3 and we next Jan. appropriateness consider the of the disci plinary imposed. Appellant sanction as panel’s
serts that affirmance of the admonition issued the Director was ar- *3 Brown,.Brown,
Gerald J. Sig- Andrew & norelli, P.A., Duluth, MN, for Appellant. Trysla, Mayo Trudi Noel Clinic Roch- ’ ester, Rochester, MN, of Thomas counsel! Fraser, Decker, Ann E. Lora Esch Mitch- ell, P.A., Byron,. Fredrikson & Minne- MN, apolis, Respondent. for
OPINION
ANDERSON, A., Russell Justice. Appellant brought a medical action in connection with incurred during post-operative following care tra- surgery. cheal resection The district court granted motion to dismiss on defendant’s grounds that appellant had failed to com- ply with the witness disclosure re- quirements of Minn.Stat. 145.682 affirmed, appeals The court of and we granted Concluding further review. appellant’s disclosure was sufficient preclude mandatory dismissal of a nurs- action, ing malpractice cause of we affirm part, reverse in and remand to the part, proceedings. district court for further 17, 1999, permanent appellant Amy- properly not heal and left December On tracheal scar on forehead. Broehm underwent resec- Marie Dr. Peter Pair- performed by surgery, tion against an action Broehm commenced olero, chief of sur- surgeon thoracic July medical Mayo alleging Rochester, respondent Mayo Clinic gery at As malpractice. required under Minn. of her trachea. congenital narrowing (2004), Stat. subds. removing a one and involved Mayo with an affidavit of served inch section of the trachea where the a half day was filed. review on that the suit reconnecting had narrowing occurred 21, 2002, Additionally, on within January the two sections of the trachea su- 180-day period required under Minn. *4 Following tracheal resection sur- tures. (2004), § Broehm subd. 4 Stat. neck must gery, patient’s the head and be disclo- Mayo with an witness expert served hy- as days for to three immobilized two R.N., by Wick, signed sure C.N.P. Linda could cause perextension the neck the 28, January 2002, day of the last the On sutures, of the tracheal result- separation 180-day period, time filed a mo- Broehm ing in suffocation. One method used 180-day tion to extend deadline. surgeons thoracic the head immobilize Mayo opposed the motion for extension patient’s area is and neck to suture and moved dismiss Broehm’s claim. alternative, chin to the chest. As an Dr. The extension and motions came dismissal designed restraint Pairolero a head and hearing for on 2002. On on March employed “dozens has this method 9, 2002, April the district without court’s years. for over 28 times” “supple- Broehm permission, submitted memorandum,” seeking pre- mental surgical The restraint consists of towel position expert serve the disclosure placed against forehead patient’s and required was not Broehm would because by two of 2-inch-wide sur- strips secured jury ipsa loquitur be entitled to res gical tape to a attached headboard. Paul instruction. attachment to the an Holland, physician assistant who worked memorandum, an ex- Broehm submitted helped develop- with Dr. Pairolero and pert identifying plastic disclosure sur- restraint, ing the constructed the device and geon summarizing opinion. his The practice used on Broehm. The usual was court, considering district without for Dr. Pairolero’s “team” or “service” to submissions, newly filed denied Broehm’s manage the care of the device. On De- granted motion for an and extension began cember as recover Mayo’s motion to The dismiss. court sedation, from of a complained she head- found that Broehm to demon- had failed pain and According ache her forehead. good cause strate for an extension chart, to Broehm’s medical at noon the require- had failed to comply with the “primary s[ervice]” removed the restraint § ments of Minn.Stat. 145.682. and observed area abraded Broehm’s Triple appeal, appeals forehead. antibiotic med- On court of affirmed majority. ointment applied by panel appeals ication was to the abrad- The court of and the initially rejected ed area restraint was “redone to considered Broehm’s pressure plas- testimony remove site.” A claim that no was re- [the] surgeon quired. pro- tic consulted who recom- The court then affirmed the dismissal, mended additional gels concluding ointments and for cedural wound, noting qualified it that would heal with- was however, difficulty. wound, applicable out to the of care as did standards § prejudice. Minn.Stat. 145.682. The suits dismissal with required Minn. (2004).1 extension, the denial of an Stat. court affirmed adequate that Broehm had time concluding Here, in dismissing com expert-disclosure dead- comply with plaint for failure to comply with expert good line and failed to show cause for the disclosure, the district court determined requested dissenting panel extension. The practitioner that a nurse was not testi- member believed while provide expert opinion as to the stan trial, mony likely necessary dard of care of a thoracic surgeon. We required preliminary stage was not at the will reverse a district court’s dismissal of a prima to show a facie case of medical malpractice claim noncompliance with malpractice. only if the district court abused its discretion. v. Univ. Teffeteller I. Minn., (Minn. action, 2002). In a medical Minn. requires
Stat. 145.682 that with service In an effort to reduce the associat-. costs complaint, plaintiffs of the summons and ed malpractice litigation as a means *5 attorney must also serve an affidavit stat- availability to increase the reasonably of ing that the case has been reviewed with insurance, priced medical nearly every expert qualifications an provide “whose state has enacted some measure of medical that expectation expert’s reasonable malpractice litigation reform. Mitchell J. opinions could be admissible at trial and Nathanson, (and It’s the Economy Com- that, in expert, of this one or Ratio) Stupid: Examining the Med- bined appli- more defendants deviated from the ical Malpractice Litigation Myth and the by cable standard of care and that action Reform, Factors Critical to 108 Penn. St. Id., plaintiff.” (2004). caused to the subds. 1077, L.Rev.. 1077 n. 1 The Minne- 2, days 3. 180 of commencement of Within legislature expert-review sota enacted and suit, plaintiff upon must serve defendant expert-disclosure requirements as a means by signed expert plain- affidavits each that readily identifying of meritless lawsuits at expects tiff to call at stating, trial with early stage litigation. an of the Sorenson respect Ctr., to malpractice Ramsey issues of or causa- v. Paul St. Med. 457 N.W.2d tion, (Minn.1990) 188, opin- the substance of the facts and 190-91 that (noting “the expert expects testify ions to which the legislature contemplated procedural re- summary grounds and a for each at form directed elimination of ‘frivolous ” Id., 4(a). statute). opinion. Interrogatory adopting subd. cases’ “[N]otice may provisions answers be used lieu of affidavits of claim and certificate of merit long they signed by so are expert are not as as more intrusive elaborate plaintiffs attorney. and Noncompli- malpractice [screening] panels Id. seen in oth- * * Jr., statutory requirements ance with the re- er *.” Hurney, states Thomas J. action, specify 1. At the time Broehm commenced her in the dismissal motion the deficien- provided timely interrogatories section 145.682 that failure to cies in the affidavit or and disclosure, motion, expert upon allowing 45-day period plaintiff serve the re- time for the mandatory prejudice sulted in with to cure the deficiencies before dismissal dismissal with every expert mandatory. prejudice ap- cause of action as to The which is amendment testimony necessary prima plies establish to causes of action commenced on or 23, 22, 2002, May May § facie case. Minn.Stat. subd. 6 after 2002. Act of ch. (2000). 403, 1, (codified legislature § The has since amended 2002 Minn. Laws 1706-07 6(c) (2004)). provision, requiring the defendant at Minn.Stat. 726 outline chain of causation Liability provide in West be
Medical Professional
369,
alleged
tween
violations of standard of
385 n.
105 W. Va. L.Rev.
Virginia,
merely opining
damages,
care and claimed
require
of merit
Certificate
115
delay
diagnosis
compli
resulted
than
proven more effective
ments have
hospital stay).
cated
mechanisms,
other
reform
capping
and.
panels
arbitration
such as
expert
requirements
litigation
“reducing
insurers’
damages,
met
a witness who
not
cannot be
costs.” Na
significant social
costs without
give
opinion.
qualified
expert
Teffe
thanson,
supra
teller,
(expert
spe
at 427
not
N.W.2d
in field
pediatric oncology
cialized
legis
as not to undermine the
So
marrow
experienced
transplants
with bone
disclosure,
and
aim of
review
lative
qualified
not
submit
affidavit as
must ad
plaintiffs
have stressed
we
customary
physicians
for
response
compliance
require
to strict
here
treating pediatric
transplant
bone marrow
Minn.Stat.
145.682. See Lind
ments of
Hosp.
patients); Wall v. Fairview
and
Inc.,
Partners,
Health
599 N.W.2d
berg v.
Servs.,
Healthcare
(Minn.1999)
(statutory require
577-78
(Minn.1998)
psychother
(psychologist
“uncomplicated
unambigu
are
ments
apist
opin
contemplate
compliance).
strict
ous” and
appropriate
ion about the
standard of care
forth,
“expected
Plaintiffs are
to set
nurse);
a psychiatric
cf. Cornfeldt
interrogatories,
affidavit or answers to
(Minn.1977)
Tongen, 262
experts’
their
specific
concerning
details
(expert medical
must have
witnesses
both
testimony, including
applica
expected
*6
knowledge and prac
sufficient scientific
care,
of
or
ble standard
the acts
omissions
experience
respect
subject
tical
with
allege
plaintiffs
that
violated the standard
testimony).
matter
offered
care and an outline of the chain of
of
holding
We have been firm in
that fail
in
allegedly
resulted
dam
causation
plaintiff
strictly satisfy
ure
Sorenson, 457
age to them.”
N.W.2d at
§
requirements under Minn.Stat.
have made
plain
193. We
“broad and
4(a)
in dismissal of the
subd.
results
claim
conclusory statements as to causation” and
645
prejudice. Teffeteller,
N.W.2d at
“empty
are
conclusions”
insufficient.
(dismissal
430-31
of
action
Rengachary,
Anderson v.
608 N.W.2d
expert
mandated where
disclosure con
(Minn.2000)
847-48
affidavit
(expert
failed
only
conclusory
tained
broad and
state
care,
forth standard
not iden
to set
of
did
(dis
ments); Anderson,
at
tify
acts
omissions that violated stan
expert
missal mandated where
disclosure
attempt
dard of care and
no
made
out
clearly
statutory
failed to fulfill the
re
injury);
resulting
line chain of causation
in
quirements); Lindberg,
that did not cause a wound II. alternatively, employ an alternative technique to immobilize the head. argues Broehm also that the dis Inspect integrity
3.
skin
and the re-
trict court abused its
denying
discretion in
though
straint device as
it were a dress-
her motion to extend
180-day expert-
intervals,
ing
regular
at
no less often
disclosure deadline. We review the denial
nursing
than once each 8 hour
shift or of an extension of the disclosure deadline
medically
more often if
indicated.
See,
for an abuse of discretion.
e.g., Lind
berg,
appropriate specialty
Seek
care to
wound surgery sub-specialty or the of thoracic inspect integrity 3. skin claim, surgery. Fail[ed] Nor was there a the court though the restraint device as observed, that Wick had assisted in tra- dressing regular were a intervals postopera- cheal resection or the no less often than once each 8 hour surgery. care for The court tive such nursing shift or more often if medi- the four then reviewed each of duties cally indicated. Mayo identi- owed to Broehm were fied in disclosure. The court con- Wick’s appropriate special- 4. seek Fail[ed] cluded that Broehm “failed to ty diagnose care to and treat required expert witness affidavit that patient’s forehead wound immediate- ly discovery likely to be admissible at trial.” Broehm upon wound. memorandum, appeals granted In an attachment to this or submissions. The court of witness, Mayo's Portilla’s disclo- Broehm disclosed another Dr. motion strike Dr. Portilla, interroga- appellate due to William in the form of an sure from the record its tory untimely appears It court to the district court. We answer. the district did submission granted Mayo’s not consider the memorandum or the disclo- motion to strike references to request permission at from Broehm’s mate- sure. Broehm did not Dr. Portilla's disclosure hearing supplemental briefing the motion rials before us. *11 (Minn.1990) (citation omitted). and. the dis- 190 .How appealed the extension denial ever, a statutory of the court of construction is matter panel missal. A divided (cita law, affirmed, we review de novo. slightly different which appeals but Id. omitted). grounds. tion § applies Minnesota Statutes 145.682 I. in- any malpractice medical action of action an ex- majority fails to ade- cludes a cause for which opinion, its the opinion necessary is to establish a explain why pert or and how quately address 145.682, § facie case. prima the court abused its discretion Minn.Stat. district malpractice requires action. The statute the dismissing Broehm’s subd. upon two the opinion summarily plaintiff concludes that to serve affidavits The is Id. The first affidavit is one of qualified a nurse and therefore defendant. isWick expert opinion support expert an review and must be served with the provide Id. nursing malpractice complaint. claim. Such a sum- summons and This affidavit by attorney mary oversimplifies signed plaintiffs conclusion -this case. must be the detail, attorney I shall the district and affirm that the has consulted explain As by expert qualifications provide with an whose court abused -its discretion both consid- Mayo’s argu- expectation expert’s that the ering argument reasonable rebuttal —an opinion Broehm’s claim one of be admissible at trial. ment frames by § expert for thoracic Minn.Stat. subd. 3. This —and that, discounting characterization of the review affidavit must state the Wick’s dressing requiring opinion expert, appli- restraint as a nurses to of the breach of an majority by inspect integrity. for skin The cable standard of care the defendant wondering why plaintiffs injury. resulted in the leaves us dis- Id. Sec- why require trict court took the action it did and tion 145.682 does not identification appeals disagreed expert description the court of of the or a of the ex- my hope pert’s qualifications district court. It is that I can in this first affidavit. light explain shed some on this issue and by second affidavit required section happened what some context identity 145.682 must disclose the of each upon when this case is considered remand. person plaintiff expects to call as an expert regarding malprac- witness trial A. Requirements of Minn.Stat. tice and causation. Minn.Stat. § 145.682 4(a). The second affidavit must also begin by I addressing the court’s disclose “the substance of the facts and district expert determination that opinions expected to which the by satisfy testify, summary submitted grounds did requirements opinion.” As each Id. Minn.Stat. 145.682. Section 145.682 allows noted, previously interrogatory the court’s determination answers to an be used as finding by was based on its that Wick was not alternative to disclosure affidavit so long signed by to offer an on the as the answers are patient by plaintiffs attorney. standard of care owed to a witness and the thoracic surgeon. plaintiff We will reverse a dis Id. The must serve the trict pro court’s dismissal of action for disclosure on the defendant within 180 irregularities only days commencing against cedural if the court after the action defendant, abused its discretion. Sorenson v. St. whether the disclosure is Ctr., Ramsey Paul Med. interrogatory affidavit answers.
733 4(a). 145.682, § subds. 2 and the disclosure “should set out how the Minn.Stat. identity expert and will use those facts to arrive at of Wick’s Broehm’s disclosure opinions malpractice an- of and by interrogatory made an causation.” opinion was Id. at 192-93. Our upon Mayo following before the 180- decisions swer served on Sorenson have elaborated the content day expired. deadline See, an requirements expert of disclosure. her time Broehm commenced At the Partners, Inc., e.g., Lindberg v. Health 599 action, fail- provided that section 145.682 (Minn.1999) (holding N.W.2d 578 an expert disclosure before ure to serve the expert’s affidavit was it insufficient where resulted, upon mo- expired deadline the a failed detailed statement of a tion, prej- mandatory in dismissal with the of standard care and failed to outline a cause of action for which udice of each connecting alleged chain of causation an testimony necessary to estab- injury). breach to an See also Stroud case. Minn.Stat. prima lish a facie Ctr., Hennepin County Med. 145.682, by As noted the § subd. 6 (Minn.1996); Renga Anderson v. amend- majority, legislature the has since (Minn. chary, 608 N.W.2d 847-48 require that a defen- ed section 145.682 2000). here, Mayo challenge But does not any in its motion to dismiss specify dant sufficiency the of the content of Wick’s in disclosure and now al- deficiencies the disclosure, only but qualification Wick’s only if has not plaintiff lows dismissal give expert opinion. an corrected those deficiencies before foregoing Minn. The discussion of Sorenson hearing on the motion to dismiss. 6(c) (2004). Lindberg following and and the subd. Under discussion Stat. statute, in in Comfeldt, holdings amended the date for the hear- of addition to our Anderson, clearly motion to dismiss must at Stroud and delineate ing be majori- precedent of of our and undermine the days least 45 from the date service ty’s Teffeteller, reliance on a 3-2 the motion. Id. undue majority over- decision of our court. of purpose We have described the sec requirements states Minn.Stat. eliminate “frivo being tion 145.682 as 4(a), when it states that a malpractice medical claims. Soren lous” “strictly satisfy” require- plaintiff must son, at 191. We concluded ments of the statute or face dismissal of that the dis procedural Sorenson section’s interpretation her claim. a “strict” * * * Such to have missal mechanism “seems of section 145.682 purpose undermines the com designed only been to deal with cases an initial which is to establish threshold testimony.” pletely unsupported by expert credibility for medical cases end, important Id. To that the most disclo ap- to eliminate frivolous claims and order by 145.682 “is the required sure section pears to conflict with standard Comfeldt’s identity willing of an who is evi- qualification expert opinion for the testify alleged negligence.” as to the Id. dence; i.e., not limit we do have, however, (emphasis original). We who are persons evidence to the one or few guidance on the content provided some give expert opinion. an most requirements of the disclosure. Section not be con- cannot should Teffeteller con require 145.682does not a disclosure’s requirement. a impose strued to such detailed, highly tents to be but we held possible for the I am concerned result enough Sorenson was not majority’s language, district courts simply repeat the facts found of the Rather, unduly may tempted vigilant to be in a medical record. Id. at 192. training or skills concern early stage at too as witness who has screening out cases subject may be heard as ing particular The fol- in the case before us. happened subject; the value of the expert on problems articulates the lowing quotation testimony is tested cross-examination court determine the admissi- having ultimately jury. determined early at too bility expert opinions *13 it to Cornfeldt, Id. In we held was error litigation: stage the testimony the of a chief nurse exclude expert opinion problem with the Another malpractice in a medical claim anesthetist testimony when the occurs against “solely he not doctors because was opinion the must be admissi- preparing physician a licensed or he did not because very trial courts difficult for It is ble. graduate from medical school and had re litigation to make early in civil such only training registered ceived the of a Regarding the trial determination. 262 at 697. nurse anesthetist.” N.W.2d “gatekeeping” responsibility court’s if reasoned that the nurse had other We deciding upon admissibility the practical expe wise sufficient scientific and testimony, Supreme the scientific U.S. subject testimony, rience about the of his judge has said: trial court “[T]he Court competent give he have to an been * * * determine at the outset must an expert opinion. Consequently, Id. ex methodology reasoning or whether pert’s experiential qualifica academic or underlying testimony scientifically is usually go weight given tions to the to an * * * reasoning valid whether that [and] admissibility. than to opinion rather its applied can methodology properly or State, 475, Ruether v. 455 N.W.2d 477 to the facts issue.” Such determina- (Minn.1990). litigation are tions at the civil outset they may problematic because lead to Characterizing B. Broehm’s claim litigation, satellite as was often excessive proceed analysis, As I this is the case under the 1983 version of Fed- important identify subject to first or eral Civil Procedure Rule 11. Addition- claim opinion that Wick’s was intended to ally, may the relevant factual issues not support qualification because witness’s to at a preliminary have surfaced such give expert opinion inextricably an is stage. knowledge linked to the witness’s of or Leonetti, Jefferey Amy A. Parness & Ex- experience particular subject. with a See pert Opinion Pleading: Any Spe- Merit to Cornfeldt, Mayo has cial Certificates Merit? 1997 B.Y.U. being characterized Broehm’s claim as one (1997). 537, L.Rev. 586 surgeon ar malpractice thoracic and qualified give To be an expert gues qualified give is not an case, in a medical a witness duty expert opinion surgeon’s on thoracic must have both sufficient scientific knowl patient. of care to a tracheal resection In edge practical experience of and with the argument, Mayo emphasizes danger its subject testimony. matter of the offered against and death suffocation which 684, Tongen, v. 262 692 N.W.2d designed safeguard. head restraint is Cornfeldt (Minn.1977). qualified give Those ex restraint, Mayo contends that as an pert opinion evidence are not limited to the care, postoperative essential element of persons one or the few who are most an extension of the thoracic qualified give an expert opinion. only represents specialized thus care that Saliterman, Christy 288 Minn. Dr. Pairolero could supervise. Instead, Therefore, asserts, Mayo a nurse with not its discretion trict court did abuse qual is not training experience Wtek’s give when it found Wick supporting a give ified testimony support of a claim malpractice. surgeon claim of thoracic foregoing two duties of a based contrast, dis- developed as Wick’s surgeon. thoracic case focus- closure, theory of the Broehm’s head attention to the the care and es on Duty specialty D. to seek care time it was constructed from the restraint The two other duties identified in the Mayo staff discovered time to the inspect the restraint Wick disclosure—to injury days two later. dressing if it and to seek imme were nursing or her case as one of characterizes specialty diate care once Broehm’s testi- malpractice. The continuum of care *14 susceptible was discovered—are not to a in the disclosure mony by Wick offered categorical pronouncement that Wick does injury that Broehm’s on the claim focuses expert. duty an A to imme qualify not from the result of skin necrosis was the diately specialty may depend care on seek theory articulat- One pressure. restraint’s duty may of a specific the facts case. was caused that the necrosis ed Wick is duty properly respond to nursing involve a tape to of adhesive application the physician’s to an as distinct from during the restraint’s Broehm’s forehead duty spe treatment decision. A to seek also articulates a sec- construction. Wick cialty possibly care is a matter within a first, than the theory, greater detail ond training experience practical nurse’s duty nursing of alleged on an premised presump not such that a nurse should inspect Broehm’s skin periodically staff to tively disqualified giving from an According to this sec- under the restraint. Cornfeldt, 262 at 697 opinion. See N.W.2d nursing prop- staff theory, Mayo’s had ond that it erroneous to exclude (holding erly integrity, for skin inspected testimony of a nurse a mal the prevented or could injury could have been solely practice against action doctors be less severe. The district court have been did not have the similar cause the nurse Mayo’s characteriza- apparently relied on doctors). and education as the credentials assessing qualifi- tion of the case Wick’s Nevertheless, dis Broehm’s abbreviated opinion on each of the give to an cation does nursing experience closure Wick’s disclosure. four duties identified the that has sufficient not Wick demonstrate compe to make her surgeon malpractice practical experience C.Thoracic opinion on an assert give tent to an proper in may reliance have been Such care. immediately specialty duty ed to seek give to an evaluating qualification Wick’s Therefore, I would also id. at Cf. a failure on the asserted duties of did not that the district court conclude consent to to Broehm’s informed obtain it found discretion when abuse its restraint and a failure the use of the sup give an qualified to that did construct a head restraint device duty to seek a claim on port based injury. upon Based the rec- not cause specialty care. us, I conclude these first two ord before province of the duties were within standard Duty inspect nursing E. — procedure and the surgeon performing of care constructing the supervising and personnel inspect for Therefore, duty I I next consider agree specialized restraint. patients recov- integrity. Given the dis- skin majority’s holding with prima are entrusted to the The essence of a facie ering showing plaintiff presented that the facts and has responsibili- care of nurses who have the that, uncontested, opinions would allow a attending ties of to the immediate needs of if Tousignant decision in her favor. v. St. patients monitoring recovery, their , (Minn. County 615 Louis duty inspect integrity for skin 2000). Tousignant, we concluded that nursing arise from a standard of care. inappropriate it was for a court to focus my At I note concern point, this must argument the defendant’s rebuttal rather reasoning the district court’s about plaintiff than on whether the estab had respect duty inspect to the skin a prima lished facie case of medical mal integrity. The court stated that it would Here, practice. Id. at 60. the court’s against have Dr. Pairolero’s instruc- been adoption Mayo’s theory amounted to a tions for nurses to the restraint. disturb weighing consideration and defen The court then asserted that the head argument. Doing dant’s rebuttal so is con dressing bandage” restraint was “not a trary required to the nature of the burden which plaintiff would have made standard in a section 145.682dismiss of care al motion and therefore I applicable, but rather a “device conclude court in dismissing abused its discretion designed prevent possible death.” The *15 Broehm’s claim on this basis. North Wick, court concluded that nurse Cf. Franklin, ern States Power Co. 265 practitioner, qualified not was “to recom- (1963) 391, 395, Minn. 122 N.W.2d 29 post-operative type mend care for this of (holding that “A claim against is sufficient conclusion, surgery.” reaching In this * * * a motion to dismiss if possible it is disregarded opinion court that Wick’s any evidence which might produced, be restraint “had the essential characteristics pleader’s theory, consistent with the to of a ‘dressing,’ require so as to adherence grant the relief demanded.” (emphasis integrity to the skin dressing inspec- added)). protocols.” tion I also conclude that the district court Again, reasoning ap- the district court’s abused its discretion it explicitly when re- pears Mayo’s theory to flow from jected opinion Wick’s the restraint By using approach, case. this the court had the “essential characteristics of a erred in it qualifica- how evaluated Wick’s Ruether, ‘dressing.’” In our court held give tion to an duty on a that a finder of fact “is not free to disre- inspect for integrity. particu- skin More gard unopposed medical testimony because larly, this error resulted the court’s testimony such concerns issues not within adopting Mayo’s theory that this case is knowledge the realm of of the fact finder.” strictly one of surgeon malprac- thoracic 455 (citing N.W.2d 478 Olson v. Mid- tice as opposed to Broehm’s nursing mal- Co., west Printing 46 practice theory. The burden on Broehm (Minn.1984)). There was no medical opin- was simply prima to make out a facie case ion concerning other than Wick’s whether of medical malpractice. particular, the restraint should have been construed produce had the burden to dressing. abe Whether the restraint opinion whose supported her claim. dressing had the characteristics Sorenson, See 457 (stating N.W.2d at 191 hospital terms of protocol is purpose of section 145.682’s dismissal outside of knowledge common and the provision “complete- deal with cases court improperly opin- discounted Wick’s ly unsupported by expert testimony,”). opinion ion. The that the restraint was nephrology are not so narrow or nontrans- important is an dressing essentially as to lead us to conclude ferable opinion. overall Unless of Wick’s premise dressings, bandages, integrity and skin are by other was contradicted Wick’s unreasonable, dramatically treated different in those con- completely or was evidence support Nor the record such a texts. does implica- it and its accept had to the court conclusion. to dismiss of the motion purposes tions for therefore, and, the court abused its discre- Admittedly, shortcoming possible summarily rejecting it.
tion in description disclosure lies its causation, explicitly fails to articu- which Here, in the important place it is inspections late that the lack of resulted the district court’s state- correct context pressure necrosis. This short- checking the restraint “would be ment that however, coming, is not fatal because there of Dr. Pairolero’s in direct disobedience other related to are detailed statements litigation, in the stage At this orders.” sufficiently clear causation that instructing nursing Dr. Pairolero’s issue of explana- understanding proposed of Wick’s restraint, in the disturb the staff not to may it Although tion of causation. be may elimi- theory, context of Broehm’s drafted, inartfully the Wick disclosure does inspect integrity. for skin duty nate a conclu- “empty not contain the kinds of Rather, only inspection shift that might a frivo- may sions” that be used “mask to Dr. Pairolero duty from nurses Minne- lous claim.” v. Univ. reason for find- therefore is an insufficient Teffeteller (Minn.2002). sota, testify was not ing that Wick standard of regarding appropriate conclusions reflect My aforementioned Therefore, foregoing rea- for the care. given general deference should *16 court sons, the district I conclude on a motion to dismiss. Our plaintiffs when it found Wick its discretion abused prop as an “incontestable court has stated an qualified give “the that in a motion to dismiss ]” osition nursing on a stan- support a claim based are alleged by complaint and affidavit facts of care. dard true, and that the motion to be taken as plaintiff unless the granted not be should Sufficiency of disclosure F. Wick’s prima out a facie case.” fails to make LaCrosse, Wis., Hardrives, City Inc. v. court Having concluded that the district of 814, 290, 296, 818 240 N.W.2d qualifica- 307 Minn. in how it viewed Wick’s erred Bank, (1976) 285 (citing Hunt v. Nev. State tions, analysis is to step the next (1969)). 77, 292 We an 172 N.W.2d give Minn. qualification consider Wick’s that it is immaterial wheth have also held of Broehm’s support expert alleged the facts plaintiff prove can theory. Although the er nursing malpractice Mining v. Minn. complaint. in a Martens only cursory provides Wick (Minn. 732, Co., credentials, 616 739 agree Mfg. I & N.W.2d with recital of Wick’s Levin, 2000) Realty Co. v. (citing Royal nursing experi- majority that Wick’s 288, 290, 670 69 N.W.2d 244 Minn. education a sufficient ence and (1955)). stage pro in the Even at a later give for her to be basis summary a motion for ceeding, such as standard of expert opinion about take the evidence a court “must judgment, since care. has worked as nurse nonmoving to the light in in a most favorable degree a master’s and has attained 1984 Fire & Hosp. v. St. Paul Also, party.” Fairview certification as nursing. Wick’s (Minn.1995) Marine, 341 535 N.W.2d nurse and her current work geriatric 738 House, Inc., Country inspect if
(citing Murphy the restraint as it were dress- 344, 351, ing. 307 Minn. N.W.2d ' n (1976)). possibly Section 145.682 several contains contradictory provisions regarding wheth- Sorenson, recognized we that section er or experts may additional substitute abrupt 145.682’s sanction of termination following expert identified the deadline for meritorious prejudice potentially of 4(a) requires disclosure. Subdivision pref- claims runs counter to our traditional plaintiff identity per- to “state the of each disposing erence for claims their plaintiff expects son whom to call as an at 192. have merits. We testify witness at trial to with re- encouraged “carefully district courts to spect to the or issues causa- prejudice to degree evaluate the 4(a). 145.682, § tion.” Minn.Stat. subd. by inadequate defendant caused disclo- 4(b) However, provides subdivision suggested sures” and less drastic alterna- “Nothing may this subdivision be con- procedural tives to in. dismissal cases prevent party strued to either from calling plaintiff experts where a identifies additional or substitut- witnesses gives meaningful some disclosure of what ing other witnesses.” Minn.Stat. testimony (citing will be. Id. at 193 4(b) (2004) (emphasis subd. add- Ctr., Metropolitan Dennie v. Med. ed). 4(c) Also, subdivision states: (Minn.1986)). 401, 406 For these The court scheduling shall include in a reasons, dismissal of Broehm’s case on the prior order a deadline to the close of grounds articulated the district court discovery parties for all to answer ex- adjudicating does not further an interest pert interrogatories for all experts to be Therefore, on their merits. for all claims called at trial. experts No additional above, of the reasons stated the .district may by any be called party without court’s dismissal for action agreement parties leave of nursing malpractice ground on the that the the court good cause shown. require- Wick disclosure failed to meet the 4(c) (2004) Minn.Stat. ments of section 145.682 was an abuse of added). (emphasis discretion. *17 11, 2002, January
On Mayo Broehm and II. stipulated to the extension of a number of deadlines, including changing the deadline Holding that the Wick disclosure meets for designating expert witnesses from Feb- requirements the of section 145.682 to the ruary April 8 to on8 the condition “that may proceed extent that Broehm with the comply Plaintiff must with the deadline in nursing malpractice claim means that our 2(2) Minn.Stat. subd. unless affirmance of the district court’s denial of such deadline by agreement is extended an extension complete will not result the parties by the or leave of provided court as dismissal of Having Broehm’s action. met 4(b).” Minn.Stat. the section 145.682 deadline with one ex- pert thereby preserving Both the law and the facts of this case action, nursing malpractice cause of I note significant questions raise as to how the separate that a may parties issue proceed upon arise. This are to remand. Nev- ertheless, issue is permitted whether Broehm is I that it imprudent believe is later supplement replace or even any the Wick us to opinion, explicit render either expert— disclosure with that of another implicit, any provisions other of section though still limited to nursing duty relating 145.682 because no issue to the properly is provisions those interplay of al., Relators, COGGER, Darwin et have the I would Accordingly, us.
before these explicitly state court’s being addressed are not issues other BECKER, Respondent. COUNTY OF court.
No. A04-713.
CONCURRENCE of Minnesota. Supreme Court 20, 2005. Jan. PAGE, (concurring). Justice analysis court’s I concur respect nurse’s reached with
result to offer an qualifications inspect for skin duty to a respect with Broehm’s respect integrity and with theory.1 is not nursing malpractice What (in the why me is the construction clear to and not put place it was sense of how here, the restraint designed) it was how has the “essen- the court concedes which dressing,” does not of a tial characteristics nursing malpractice fall within often the one theory given that a nurse is It is also changing dressings. applying or why is not not clear to me necro- expert opinion regarding to offer applica- resulting from sis of the skin here. It restraint at issue tion of the uniquely qual- to me that nurses are seems testimony regarding to offer ified application resulting necrosis not clear to dressing. Finally, such necessary opinion is why any expert me duty con- to the doctor’s respect inju- not cause a restraint that does struct ry. *18 taping re- only practice involves case has been characterized
1. While this claim, and the failure forehead straint to Broehm's surgery malpractice that char- thoracic tape. inspect misleading. The claimed mal- acterization is