Minnesota Supreme Court Medical Malpractice Decision Highlights Unfairness Of Mandatory Physician-Patient Waiver

162017_132140396847214_292624_nIn Minnesota, a medical malpractice claimant is required to waive the physician-patient privilege so that the medical malpractice defendants may informally discuss the claimant’s medical history and treatment, whether related to the medical malpractice claim or not, with all of his health care providers. In short, Minnesota medical malpractice plaintiffs are forced to give up their right to keep their medical history private.

Minn. Stat. § 595.02, subd. 5 (2016)

Minn. Stat. § 595.02, subd. 5 (2016) states, in part:

“A party who commences an action for malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider on the person’s own behalf or in a representative capacity, waives in that action any privilege existing under subdivision 1, paragraphs (d) and (g), as to any information or opinion in the possession of a health care provider who has examined or cared for the party or other person whose health or medical condition has been placed in controversy in the action. This waiver must permit all parties to the action, and their attorneys or authorized representatives, to informally discuss the information or opinion with the health care provider if the provider consents. Prior to an informal discussion with a health care provider, the defendant must mail written notice to the other party at least 15 days before the discussion. The plaintiff’s attorney or authorized representative must have the opportunity to be present at any informal discussion. Appropriate medical authorizations permitting discussion must be provided by the party commencing the action upon request from any other party.

A health care provider may refuse to consent to the discussion but, in that event, the party seeking the information or opinion may take the deposition of the health care provider with respect to that information and opinion, without obtaining a prior court order.”


In the case the Minnesota Supreme Court was deciding, the trial court required the Minnesota medical malpractice plaintiff to authorize her subsequent treating surgeon to participate in an informal discussion with the medical malpractice defendants, but restricted their questioning of the surgeon to his own treatment of the plaintiff.

The parties and the surgeon participated in an informal discussion during which the surgeon offered the unsolicited opinion that the plaintiff’s injury (paraplegia following back surgery) was due to fast-growing bacteria causing infection and spinal collapse within the two weeks before the paraplegia, effectively opining that the medical malpractice defendants’ care was neither negligent nor the cause of the plaintiff’s paraplegia.

The plaintiff moved to depose the surgeon, arguing that the informal conference and the causation theory raised therein provided good cause, but the trial court denied the motion, concluding that its order was not violated and that good cause did not exist.

The plaintiff objected to the surgeon’s testimony during the subsequent Minnesota medical malpractice jury trial, arguing that the surgeon’s statements in the informal discussion had converted him into an undisclosed Rule 26 expert (Minn. R. Civ. P. 26.01(b) requires pre-trial disclosure of witnesses who will offer expert opinions). The trial court allowed the surgeon to testify to the same opinion as the one he had volunteered at the informal discussion. The Minnesota medical malpractice jury found in favor of the defendants, and the plaintiff appealed.

In its opinion dated February 15, 2017, the Minnesota Supreme Court refused to provide its interpretation of Minn. Stat. § 595.02, subd. 5 (2016). Instead, the Minnesota Supreme Court held that the trial court’s order was neither styled as, nor had the characteristics of, an injunction, and thus the lower appellate court lacked jurisdiction to consider it under Rule 103.03(b).

The Minnesota Supreme Court noted, however, that there is a separate, pending appeal in which an issue is whether the surgeon should have been allowed to testify and, if so, what parts of his testimony were admissible.

Source Howard v. Svoboda, A15-0896.

If you or a loved one may be the victim of medical malpractice in Minnesota, you should promptly consult with a Minnesota medical malpractice lawyer who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or telephone us toll-free in the United States at 800-295-3959 to be connected with Minnesota medical malpractice attorneys who may assist you with your medical malpractice claim.

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This entry was posted on Monday, February 20th, 2017 at 5:24 am. Both comments and pings are currently closed.

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