Minn. Court Sets Expert Report Deadline For Med Mal Cases

By Y. Peter Kang Minnesota Source

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  • May 31, 2018

Law360 (April 30, 2018, 8:14 PM EDT) — A Minnesota appeals court on Monday effectively created a bright-line rule regarding how much time plaintiffs have to file an expert opinion in medical malpractice cases, saying plaintiffs have 180 days to file after the start of discovery, which begins no later than 30 days after the defendant’s answer.

In a published opinion, a three-judge Court of Appeals panel revived a lawsuit brought by patient Ann Firkus accusing Dr. Dana Harms of unspecified medical malpractice. The suit had been tossed by the trial judge for Firkus’ failure to submit a medical expert’s affidavit within 180 days of the start of discovery as required by the state’s expert-review statute, Section 145.682 of the Minnesota Statutes.

The panel said because the statute’s language is ambiguous as to when discovery actually begins, it looked to the statute’s legislative history and determined that discovery commences, for purposes of the expert-review statute, no later than 30 days after the defendant files an answer to a complaint.

The appeals court explained that a 2014 amendment to the expert-review statute, changing the 180-day deadline to begin running after the start of discovery rather than the date the suit is filed, was made following changes in 2013 to the state’s discovery rules and ensured patients would have approximately six months to find a medical expert.

“Legislative history shows this amendment was not meant to substantively change the statute, but to ensure plaintiffs still had their entire 180 days to conduct discovery for their affidavit of expert identification,” the panel wrote in a 14-page opinion.

The panel rejected Firkus’ argument that the 180-day deadline shouldn’t begin running until the parties have had a formal discovery conference, saying certain plaintiffs would receive an extended amount of time to search for medical experts, which would run counter to the purpose of the expert-review statute designed to weed out frivolous medical malpractice claims.

“Because discovery is to commence no later than 30 days after the initial due date of the answer — the same date as the deadline for the discovery conference — this date triggers the latest possible start of the 180-day period to file the affidavit of expert identification,” the panel said. “This provides a definite period to complete the affidavit, but incorporates the changes to case timelines from the amended rules of civil procedure.”

It added, “It provides parties with a bright-line rule, a feature of the statutory language before the amendment. Given the legislative intent to maintain the status quo, rather than create delays, this reading of the statute best reflects the legislature’s intent.”

The appeals court said because Firkus filed an expert report more than three months after the deadline, the trial judge did not err by dismissing the suit on those grounds. However, the panel said given its ruling, the trial judge should hold additional proceedings to determine whether the ambiguity of the statute is a sufficient excuse under the doctrine of excusable neglect as to why Firkus failed to timely file an expert report.

“And because there are no findings by the district court on how the potential confusion over the statutory language may have delayed the filing of the affidavit of expert identification, we remand to the district court for findings on this element,” it said. “If it finds that it was a reasonable excuse under the circumstances, then it must determine if the other elements of excusable neglect are similarly satisfied.”

An attorney for Harms, Mark R. Whitmore of Bassford Remele PA, told Law360 on Monday that the ruling was significant because the issue had gone undecided for some time.

“It’s a decision that makes sense. You don’t have an unlimited amount of time to do the mandatory expert work,” he said. “The decision by the Court of Appeals really reaffirmed that.”

An attorney for Firkus, Nicholas Henry of Nicholas Henry Law LLC, said he was disappointed that the court found the language of the statute ambiguous but added that he was not surprised.

“Overall, I think it was a fair ruling and we’ll take it from there,” he said.

Judges Peter M. Reyes Jr., Heidi S. Schellhas and Lucinda E. Jesson sat on the panel for the Court of Appeals.

Firkus is represented by Nicholas Henry of Nicholas Henry Law LLC.

Harms is represented by Mark R. Whitmore and Amie E. Penny Sayler of Bassford Remele PA.

The case is Ann M. Firkus v. Dana J. Harms MD, case number A17-1088, in the Minnesota Court of Appeals.