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The Law of Medical Malpractice in Minnesota:

A Survey of Basic Considerations

This article provides an overview of Minnesota medical malpractice law. In the Land of 10,000 Lakes, plaintiffs generally must provide two expert affidavits at the outset of the litigation demonstrating that, in the opinion of a qualified medical expert, the claim has some merit. Plaintiffs who ultimately prevail on their claims are able to recover generous awards because Minnesota does not impose a ceiling, or upper limit, on medical malpractice damages.

Section I below summarizes broad principles and concepts. Sections II through XIII examine some of the mechanics of filing and litigating a medical malpractice lawsuit in Minnesota.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
III. Expert Affidavits and Other Requirements
IV. Immunities and Limitations on Liability
V. Medical Expert Witnesses
VI. Comparative Negligence / Proportionate Liability
VII. Limitations on Damages
VIII. Limitations on Attorney Fees
IX. Discovery Rules
X. Patient Compensation Funds
XI. Communications with Treating Physicians
XII. Apologies and Sympathetic Gestures
XIII. Loss of Chance Doctrine
XIV. Disclaimer

I. Overview of Basic Principles and Concepts

To prevail on a claim of medical malpractice under Minnesota law, a plaintiff must prove (1) the standard of care recognized by the medical community as applicable to the particular defendant’s conduct, (2) that the defendant in fact departed from that standard, and (3) that the defendant’s departure from the standard was a direct cause of the patient’s injuries. Dickhoff v. Green, 836 N.W.2d 321 (Minn. 2013).
In medical malpractice cases, the complaint initiating the lawsuit must include an Affidavit of Expert Review by the plaintiff’s attorney stating that the case has been reviewed with a qualified medical expert and that, in the opinion of the expert, the plaintiff was injured by substandard healthcare. For more on the affidavit requirement(s), see Section III below.

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

Under Minnesota law, a patient or former patient generally has four years to file a medical malpractice claim. The four-year “statute of limitations” begins running from the date the legal claim “accrued.” Minn. Stat. § 541.076.

The accrual date — i.e., the date the clock starts ticking on the four-year period — usually occurs when the physician’s treatment for a particular condition ceases. But if there is a single act of alleged negligence, the clock begins when the plaintiff sustains damage from that act. Sometimes, too, additional factors must be considered. MacRae v. Group Health Plan, Inc., 753 N.W.2d 711 (Minn. 2008); D’Amaro v. Joyce, 297 F.3d 768 (8th Cir. 2002).

No Discovery Rule

Unlike many states, Minnesota has not adopted the “discovery rule,” which affords a patient extra time to file a lawsuit in situations where injury or negligence is not easily detectible (e.g., a sponge left in a patient during an operation).

The absence of a discovery rule in Minnesota has important implications. In MacRae, supra, a patient died from cancer, and his wife brought a wrongful death suit claiming that the cancer should have been diagnosed years earlier. The defendant physicians asserted that the wife’s lawsuit was barred by the four-year statute of limitations because any misdiagnosis happened more than four years prior, and it was now too late to sue.

Had Minnesota recognized the discovery rule, the four-year period would have been measured from when the wife discovered, or should have discovered, the alleged misdiagnosis. But instead, the Minnesota Supreme Court explained that Minnesota applies a “damage” rule rather than a discovery rule. Consequently, the statute of limitations began to run here when “some compensable damage” occurred as a result of the alleged misdiagnosis. Because it was not entirely clear on the record when that point was reached, the court sent the case back to the lower courts for additional factfinding.

While Minnesota rejects the discovery rule, its four-year statute of limitations is longer than that of most states.

Wrongful Death Suits

Different time limits apply to claims alleging that medical malpractice caused a loved one’s death. Wrongful death claims in Minnesota must be brought within three years of the date of death, but can never be filed more than four years from the date the medical malpractice claim accrued. Put differently, the suit must satisfy the applicable timeliness requirements for a malpractice claim and also must be brought within three years of the patient’s death. Minn. Stat. § 573.02, subd. 1; MacRae, supra; Zenzen v. Eiser, No. A04-905, 2005 WL 89436 (Minn. App. Jan. 18, 2005).

Injured Patients Who Are Minors

Special time limits also apply to malpractice suits involving children. A child who claims injury from healthcare treatment must bring any malpractice lawsuit within seven years or by the age of 19, whichever comes first. Minn. Stat. § 541.15.

III. Expert Affidavits and Other Requirements

Expert Affidavits

In Minnesota malpractice cases, plaintiffs must submit two expert affidavits supporting their claims at the outset of the litigation. The basic purpose of the affidavit requirements is to weed out unsupported claims. First, the complaint itself must include an Affidavit of Expert Review by the plaintiff’s attorney stating that the attorney has reviewed the case with a medical expert who is likely qualified to testify in the case and that, “in the opinion of this expert,” the defendant healthcare provider deviated from the applicable standard of care, causing injury to the plaintiff. Minn. Stat. § 145.682, subd. 3.

In addition, the plaintiff must serve upon the defendant, within 180 days after commencement of discovery, an Affidavit of Expert Identification that names each person the plaintiff expects to call as an expert witness at trial on the issues of malpractice or causation, and describes “the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.” Minn. Stat. § 145.682, subd. 4.

The underlying reason for both the Affidavit of Expert Review and the Affidavit of Expert Identification is to provide “a means of readily identifying meritless lawsuits at an early stage of litigation,” in the words of the Minnesota Supreme Court. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721 (Minn. 2005).

If a plaintiff fails to comply with these affidavit requirements, the case may be dismissed. Minn. Stat. § 145.682, subd. 6. In fact, dismissal is mandatory in certain circumstances, and many lawsuits have been dismissed and tossed out of court due to failure to comply strictly with the affidavit requirements.

Case Examples

Some examples will help illustrate these rules. In Anderson v. Donabauer, a dental malpractice case, the plaintiff’s Affidavit of Expert Identification was found inadequate because the expert, also a dentist, did not have the proper expertise to testify about whether the plaintiff’s meningitis was caused by his dentist’s failure to prescribe antibiotics. Even if the expert were qualified to testify about meningitis, his affidavit was too conclusory in declaring what “caused” the illness. Because the affidavit was deficient due to the expert’s lack of proficiency in the relevant medical area (and had not been timely corrected), the plaintiff’s lawsuit was dismissed, and on appeal the Minnesota Court of Appeals upheld the dismissal. No. A14-0383, 2014 WL 7237054 (Minn. App. Dec. 22, 2014); see also Jenco v. Crowe, No. A14-0375, 2015 WL 303653 (Minn. App. Jan. 26, 2015); Pfeiffer ex rel. Pfeiffer v. Allina Health System, 851 N.W.2d 626 (Minn. App. 2014); Tollefson v. Keck, No. A14-0499, 2014 WL 6609214 (Minn. App. Nov. 24, 2014); Bothun v. Martin LM, LLC, No. A12-1377, 2013 WL 1943019 (Minn. App. May 13, 2013).

In Davidson v. North Memorial Health Care, a patient argued that she was not required to submit expert affidavits because her claim was within the realm of practical common sense and could be understood by a layperson, making medical experts unnecessary. While it is true, the Minnesota Court of Appeals agreed, that no affidavits are necessary if the case is provable without medical expert testimony, this was not one of those rare cases, the appeals court found. Here, medical expert testimony would be needed to explain how the patient’s alleged ankle injury from being transferred to a stretcher resulted in an infection that required her leg to be amputated. Because her malpractice claim could not be proved without expert testimony and she had neglected to file the requisite expert affidavits, her lawsuit was dismissed, and the dismissal was upheld on appeal. No. A14-0381, 2015 WL 133996 (Minn. App. Jan. 12, 2015).

Arbitration

Arbitration is a method of resolving disputes outside of court, under which the parties agree to have the case heard by a professional arbitrator rather than a judge and jury. When a trial judge in Minnesota orders a malpractice case for trial, the judge must require the parties to discuss the possibility of resolving some or all of the issues in the case through arbitration or some other alternative dispute resolution method. All parties must agree unanimously before alternative dispute resolution proceeds. Minn. Stat. § 604.11.

IV. Immunities and Limitations on Liability

Government Defendants

Because governments are not always subject to suit, “immunity” issues often arise when patients sue state or county-owned hospitals or medical facilities, or healthcare professionals who works in them.

Minnesota immunity rulings are heavily fact-dependent. In one case, city-employed paramedics were found immune from a claim that they negligently intubated a patient’s esophagus. But in another case, a psychiatrist employed at a county medical facility had no immunity from a claim that he was negligent in treating a depressed patient who ultimately committed suicide. The difference between these two case outcomes has to do with how they fared under a legal analysis of matters such as whether the individual exercised a “discretionary” duty. See Bailey v. City of St. Paul, 678 N.W.2d 697 (Minn. App. 2004); Terwilliger v. Hennepin County, 561 N.W.2d 909 (Minn. 1997); see also Minn. Stat. § 466.03, subd. 6.

Hospitals’ Liability

Can a patient sue a hospital if an allegedly negligent doctor is not the hospital’s employee? The general answer in Minnesota is no. That is, a hospital cannot be held vicariously liable for a physician’s acts unless the physician is the hospital’s employee. McElwain v. Van Beek, 447 N.W.2d 442 (Minn. App.1989); see also Kramer v. St. Cloud Hosp., No. A11–1187, 2012 WL 360415 (Minn. App. Feb. 6, 2012).

But a hospital can be sued for “negligent credentialing,” meaning being careless in granting an incompetent or unqualified doctor privileges to practice medicine at the hospital. Larson v. Wasemiller, 738 N.W. 2d 300 (Minn. 2007).

Emergency Medical Care

Unlike some states, Minnesota does not impose special statutory obstacles to suing emergency room physicians and nurses. Some other states have adopted rules to protect emergency room personnel, such as a higher burden of proof, in recognition that emergency situations allow little time to contemplate treatment decisions.

V. Medical Expert Witnesses

While many states have statutes specifically regulating who may serve as a medical expert witness in a malpractice case, Minnesota does not.

Instead, Minnesota law handles the issue of medical expert qualification in essentially the same manner as it does for experts in non-medical fields. “The competency of an expert witness’s medical testimony is based on the witness’s educational credentials and practical experience regarding the subject matter,” summarized the Minnesota Court of Appeals in Tollefson supra. See also Minn. R. Evid. 702.

In Tollefson, the question arose whether a general dentist could testify as an expert witness against an allegedly negligent oral surgeon, despite the fact that the two were not practicing in the same specialty. The Minnesota Court of Appeals, reversing the trial court, held that the proposed expert could testify because, while not an oral surgeon, he had 27 years of dentistry experience. The appeals court observed that “the pool of qualified experts is not limited to the one or few persons who are most qualified to give an expert opinion.” Therefore, there was no deficiency in the plaintiff’s Affidavit of Expert Identification that would justify dismissing her lawsuit, the appeals court held.

But in Anderson, supra, another dental malpractice case, the appeals court ruled that the proposed expert was insufficiently knowledgeable to offer an expert opinion. Specifically the expert, a dentist, did not have the proper expertise in infections to testify about whether the defendant dentist’s failure to prescribe antibiotics caused a patient to develop meningitis.

VI. Comparative Negligence / Proportionate Liability

Sometimes a healthcare provider will try to pin blame for a poor treatment outcome on the patient, accusing him or her of neglecting to follow post-surgery instructions or supplying inaccurate health history information, for instance. In cases where a patient bears some fault for causing his or her own medical injury, Minnesota applies the doctrine of “comparative fault.” Under this doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced.

For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent. Minn. Stat. § 604.01; see also Billingsley v. Plate, No. C9-01-1517, 2002 WL 1056996 (Minn. App. May 28, 2002).

On a different issue, if there are multiple defendants, who pays what share of the monetary damages? Under Minnesota law, each defendant generally is liable for damages only in proportion to that defendant’s percentage of fault. For instance, if a particular defendant bore 30 percent of the fault, that defendant pays 30 percent of the monetary damages. But a defendant whose fault is greater than 50 percent is “jointly and severally” liable for the whole award. Minn. Stat. § 604.02.

VII. Limitations on Damages

Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” Unlike some states, Minnesota does not impose a statutory upper limit, or “cap,” on medical malpractice damages.

On a procedural issue, a plaintiff seeking punitive damages “must not” request such damages in the original complaint. Instead, the plaintiff must move to amend the complaint accompanied by factual affidavits. Minn. Stat. § 549.191; see also Id., § 549.20 Bothun v. Martin LM, LLC, No. A12-1377, 2013 WL 1943019 (Minn. App. May 13, 2013).

VIII. Limitations on Attorney Fees

No Minnesota medical malpractice statute sets an upper limit on attorney fees.

However, a state statute affects how attorney fees are calculated. If the plaintiff is paying a percentage fee (such as a contingent fee), the fee frequently must be computed based on the size of the damages award as reduced by amounts received from sources such as disability insurance and workers’ compensation. Minn. Stat. § 548.251, subd. 4.

IX. Discovery Rules

During the “discovery” phase of a lawsuit, the parties must exchange information with one another. To prevent this process from becoming unduly burdensome, Minnesota has adopted strict limits on the number of “interrogatories” (formal written questions) that one party may ask another.

Specifically, by statute, Minnesota has adopted certain standardized questions that are considered to be relevant to most malpractice cases. These questions, referred to as “uniform interrogatories,” are always permitted. Beyond this, the parties are restricted to propounding only ten additional interrogatories (except if they stipulate to a greater number or make a showing of good cause why more are needed). They also may submit a request for production of documents. Minn. Stat. § 604.11.

X. Patient Compensation Funds

While some states have created compensation funds to reimburse certain patients injured by healthcare treatment, Minnesota has not done so.

XI. Communications with Treating Physicians

May defense counsel communicate informally with a patient’s treating physicians without the patient’s consent?

In Minnesota, a patient cannot veto such conversations. If the treating doctor consents and if 15 days’ notice and an opportunity to attend is afforded the plaintiff’s attorney, defense counsel may informally discuss the case with the doctor. Minn. Stat. § 595.02, subd. 5; see also Blohm v. Minneapolis Urological Surgeons, P.A., 449 N.W.2d 168 (Minn. 1989); Howard v. Svoboda, 890 N.W.2d 111 (Minn. 2017).

But federal law may impose certain patient confidentiality protections by virtue of the Health Insurance Portability and Accountability Act, or HIPAA. See 45 C.F.R. § 164.512(e).

XII. Apologies and Sympathetic Gestures

If a healthcare provider apologizes for a poor treatment outcome, can the apology be used in court as evidence of negligence?
Unlike some states, Minnesota has no statute addressing this issue.

But on a related question, any payment made to an injured person does not constitute an admission of liability by the person on whose behalf payment was made. Minn. Stat. § 604.01, subd. 2.

XIII. Loss of Chance Doctrine

Many states do not recognize “loss of chance” claims, but Minnesota does.
In Dickhoff v. Green, parents of a six-year-old claimed that a physician’s negligence in failing to timely diagnose their daughter’s cancer had decreased her chances of survival by at least 20 percent. The Minnesota Supreme Court held that the case could move forward to trial. “We conclude that Minnesota law permits a patient to recover damages when a physician’s negligence diminishes or destroys a patient’s chance of recovery or survival,” the high court said. “Minnesota law permits recovery for ‘loss of chance’ in a medical malpractice action.” 836 N.W.2d 321 (Minn. 2013).

XIV. Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.
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