Affidavit of Expert Review Fatal to Med Mal Case (Again) Over Strong Dissent

Readers of this blog and those in the Minnesota medical malpractice bar are well aware of Minnesota’s statutory requirements for medical malpractice claims.

Today, the Minnesota Court of Appeals issued an opinion (by Judge Louise Dovre Bjorkman, appointed by Gov. Pawlenty to the Court of Appeals in June, 2008, and joined by Judge Jill Flaskamp Halbrooks (on the Court of Appeals since 1998)) that imposes a high degree of specificity and detail in the required affidavits.

Judge Roger Klaphake dissented, saying

Satisfying the expert affidavit content requirements of Minn. Stat. § 145.682 should not be a more difficult task than meeting the standard for summary judgment. The purpose of the statute is to cull out unmeritorious claims by establishing a prima facie case; that purpose was served here by the detailed experts affidavits offered by appellant. The statute does not require a party to prove her case before trial; that, after all, is the purpose of a trial.

Great news for Minnesota physicians, hospitals, health-care providers, and the medical malpractice defense bar, but not so good news for Minnesotans injured by medical malpractice or the medical malpractice plaintiffs’ bar.  It will be interesting to see whether Plaintiff seeks review by the Minnesota Supreme Court and whether that Court will grant the petition for discretionary review.