The Minnesota Court of Appeals recently issued an unpublished decision affirming the dismissal of a pro se litigant’s medical malpractice action. Kolosky v. Dahl, No. 82-CV-11-3685 (Minn. Ct. App. Sep. 10, 2012) (unpublished). Pro semeans the plaintiff in this case represented himself without an attorney in a medical malpractice action against a doctor and acupuncturist.
The district court dismissed the action against the acupuncturist and medical facilities because the plaintiff failed to provide an expert affidavit as required by Minnesota law. Minn. Stat. §145.682 requires plaintiff to have an expert with the proper qualifications submit an affidavit indicating that defendant’s actions failed to meet the applicable standard of care and that the failure caused injury to the plaintiff. The district court also dismissed the claim against the doctor without prejudice because there was no evidence that he had been served with a summons and complaint. The plaintiff appealed and the Minnesota Court of Appeals affirmed the dismissal of prejudice with respect to the acupuncturist and medical facilities but did not address the claim against the doctor. The plaintiff later filed a second complaint against the parties, but the district court dismissed the plaintiff’s case again.
The plaintiff appealed again. This time, the plaintiff argued that he could maintain an action against the acupuncturist because he was never properly served in the underlying matter. The Minnesota Court of Appeals disagreed while stating that the parties could waive insufficient process by invoking the jurisdiction of the court to determine the merits that determine the claim. Accordingly, the court concluded that the district court did not err in dismissing the plaintiff’s claim against the acupuncturist because he had invoked the district court’s jurisdiction in seeking dismissal.
The appellate court then addressed the plaintiff’s deficient affidavit. To support his claim against the doctor, the plaintiff had submitted an expert affidavit from his father, a dentist. The appellate court held that the affidavit was insufficient under Minn. Stat. §145.682 for several reasons. First, the court noted that there was an insufficient review of the facts regarding the claim. Second, the court noted that the plaintiff’s expert was a dentist and could not testify to the standard of care that would have applied to the defendant doctor, an orthopedic surgeon. Third, due to plaintiff’s expert’s inability to provide testimony regarding the applicable standard of care for a surgeon, none of his statements would be admissible at trial. Accordingly, the district court affirmed the dismissal.
This decision serves as a reminder that litigating medical malpractice cases involves a unique set of skills and having an attorney experienced in handing these complicated claims early in the process is beneficial for many reasons. First, having an experienced civil litigator can help a plaintiff ensure proper service and motion practice. Indeed, lot of the issues in this case could have been avoided with proper service of the summons and complaint. Second, medical malpractice attorneys can use their experience to identify meritorious medical malpractice actions early on in the process. One of the hardest things to do as an attorney is to tell a prospective client that his or her case faces limited prospects of success despite the hardship they may have already endured. However, this early evaluation is important because litigating an action will subject the plaintiff to intense scrutiny from opposing counsel involving hours of depositions, discovery responses, and potentially enduring a trial with no guarantee of recovering.
The hardship and stress placed on an individual can exacerbate the painful circumstances that gave rise to contemplating a lawsuit. However, if there is a meritorious cause of action, an experienced medical malpractice attorney can help a plaintiff avoid having the case dismissed. Third, the case discussed above involves a dispute over the expert affidavit required to proceed with a medical malpractice action. An experienced attorney can help a plaintiff locate an expert that can provide a persuasive and qualified opinion with respect to the care provided in that case. Locating an expert is often not an easy task given the reluctance of physicians to testify against other individuals within their profession. Many attorneys focus on plaintiff medical malpractice cases and have unique set of experiences that will assist them in facilitating the necessary expert review. Finally, the circumstances facing a victim of medical malpractice can often be overwhelming. When facing those circumstances, having an advocate with medical malpractice litigation experience and the ability to focus on the legal side of things while you attempt to put your life back together can be invaluable.
Although individuals are free to litigate their own cases, an experienced litigator with medical malpractice experience can alleviate many of the procedural hurdles that a medical malpractice claim faces. Our attorneys have handled hundreds of malpractice cases and help people recover damages resulting from a health care professional’s negligence. If you or a loved one has experienced negligent medical care, call or e-mail an experienced medical malpractice attorney at Hansen Dordell / 651-482-8900.
