AppId is over the quota
The national news might tell you that there is a crisis of medical malpractice lawsuits in America. Many commentators feel that there must be something done about the number of lawsuit brought against doctors before our country s irreparably harmed. What you don't always hear along with this commentary, however, is that a great number of states have already acted to solve this problem, and that many of these states have had legal framework in place for decades that have curbed frivolous medical litigation, kept doctors' insurance premiums stable, and still afforded innocent victims a fair hearing in a civil courts. The best example of this, is Minnesota, a state that is remained home to world-class medical care and stable insurance premiums without ever having to slash the statute of limitations,place anti-consumer caps on civil damages, or otherwise boldly change our traditional tort system.
What states could learn from Minnesota about tort reform, has taken years of work to establish. As is usually the case with the law, overnight changes are seldom correct. Good law is made up of trial and error, with exceptions and applications being addressed over the years as they come up. Minnesota's limits on medical malpractice cases are no exception to this, and a complicated web of rules has evolved that most lawyers in Minnesota don't even understand.
Here is how Minnesota law prevents people from filing frivolous medical malpractice lawsuits:
1. An affidavit of expert review is required to file a lawsuit against a medical professional.
Lawsuits are commenced in Minnesota with the service upon the defendant of two legal documents: a summons and complaint. Minnesota provides an additional requirement for certain types of cases, including medical malpractice lawsuits. When a plaintiff's attorney commences a lawsuit against a health care professional, Minn. Stat. 145.682 states that the summons and complaint must be accompanied by a sworn statement from the plaintiff's attorney, in the simplest of terms, that he or she has reviewed this case with a medical expert and that the expert agrees with the foundation of the malpractice case. Failing to provide this affidavit will quickly end the case at very little cost to anybody, especially the physician or health care provider.
2. Another, more detailed affidavit is required within 180 days that can also end the case in summary fashion.
Here is where it gets a little more interesting. Minnesota law requires the disclosure of a more detailed expert affidavit within 180 days of the commencement of the lawsuit. The two affidavits are very different. The first affidavit answers the question, "Did you make sure this claim has some merit before you brought it?", while the second affidavit answers the questions of "What are you going to prove happened, and how are you going to prove it?"
All experts needed to establish the case must be identified along with their qualifications to testify in the case. Every part of the prima facie claim must be established within this document or the case will be thrown out before any trial or, for that matter, any hearing with testimony can take place. The experts must lay out the substantive basis for their opinions within this document as well with substantial detail.
Originally, that was it. A lawsuit would be filed and an affidavit would be served on the defense within the time period. Then at the expiration of 180 days, without fail, defense attorneys would move to throw the case out on 145.682 on the grounds of alleged deficiencies in the plaintiff's affidavit. This brings up a hearing with the court in which the doctor's attorney can argue to the judge, not that the doctor was innocent of any wrongdoing, but that the plaintiff's legal document contained some error or deficiency that made it fall short of the extra legal requirements. Defense attorneys found that there was no risk in bringing this motion and that sometimes, judges were receptive to their arguments. But without an opportunity to fix problems in this crucial document, many plaintiffs saw otherwise valid claims of malpractice unfairly thrown out of court.
The legislature acted to resolve this issue by adding a safe-harbor provision to the statute. Rather than requiring courts to blindly throw out claims with or without merit based on one legal filing, the legislature created an intricate little exception. When there are deficiencies alleged by the defense, the proper method of addressing them with the court is through a motion to dismiss. 145.682 was changed to require that such motions to dismiss must outline all deficiencies. Upon such a motion, a hearing will be set with the court in 45 days. If, by the date of the hearing, the plaintiff has not fixed the alleged deficiencies, the claim might be thrown out by the judge. So in effect, a plaintiff now gets notice of any alleged problems in the affidavit that could prematurely end the case, and has a fair chance to fix them.
Good lawyers won't let something like this stop them, and there has still been a substantial amount of fighting over the interpretation of this rule and its exceptions. An interesting case just was decided by the Minnesota Supreme Court on this issue, Wesely v. Flor, A10-0478 (Minn. 2011). The central issue of this case was whether the expert can be substituted to address an alleged deficiency in his qualification to testify. The court of appeals took the stance that the service of a new affidavit from a more qualified expert within the 45 day safe-harbor period did not meet the definition of an "amended affidavit" because it would be sworn to by somebody else. The Supreme Court reversed, holding that the qualifications of an expert are just one of the many deficiencies that can be fairly addressed by plaintiffs within the 45 day window preceding the motion to dismiss. Obviously, the laws surrounding expert medical affidavits in Minnesota are still evolving as both sides look to exploit a relatively recent procedural change to tort laws that have been in place for millennia.
Pat Stoneking is a personal injury lawyer in Minneapolis, Minnesota. You can read more about Pat at http://www.stonekinglaw.com/
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