In a Minnesota medical malpractice case decided by the Minnesota Court of Appeals on February 16, 2024, the Court held that Minn. Stat. § 573.02, subd. 1 (2022), does not require dismissal of a wrongful-death action based on medical malpractice when the expert-review affidavit is served after the wrongful-death statute of limitations has expired, so long as it was served within the 60-day safe-harbor period provided for in Minn. Stat. § 145.682, subd. 6(a) (2022).
When expert testimony is necessary in a Minnesota medical malpractice case, the plaintiff must first serve on the defendant, with the summons and complaint, an affidavit drafted by the plaintiff’s attorney stating that the affiant has reviewed the facts of the case with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff. Minn. Stat. § 145.682, subds. 2, 3(1). Failure to comply within 60 days of an opponent’s demand for the affidavit results in mandatory dismissal with prejudice of any claim as to which expert testimony is necessary to make a prima facie case.
Minnesota Wrong Death Statute
Minnesota’s wrongful-death statute provides a three-year statute of limitations:
“When death is caused by the wrongful act or omission of any person or corporation, the trustee appointed as provided in subdivision 3 may maintain an action therefor if the decedent might have maintained an action, had the decedent lived, for an injury caused by the wrongful act or omission. An action to recover damages for a death caused by the alleged professional negligence of a physician, surgeon, dentist, hospital or sanitarium, or an employee of a physician, surgeon, dentist, hospital or sanitarium shall be commenced within three years of the date of death, but in no event shall be commenced beyond the time set forth in section 541.076.” Minn. Stat. § 573.02, subd. 1.
An action alleging medical malpractice requires service of an expert-review affidavit with the summons and complaint:
“In an action alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a
health care provider which includes a cause of action as to which expert testimony is necessary to establish a prima facie case, the plaintiff must: (1) unless otherwise provided in subdivision 3, clause (2), serve upon defendant with the
summons and complaint an affidavit as provided in subdivision 3; and (2) serve upon defendant within 180 days
after commencement of discovery under the Rules of Civil Procedure, rule 26.04(a) an affidavit as provided by
subdivision 4.”
Failure to serve the expert-review affidavit results in mandatory dismissal with prejudice when (1) a demand for the affidavit is made; and (2) the plaintiff fails to serve an expert-review affidavit within 60 days of the demand. Minn. Stat. § 145.682, subd. 6(a). But the wrongful-death statute is silent on whether this service is a jurisdictional requirement to commencing an action.
The Minnesota Court of Appeals stated: “The plain language of Minn. Stat. § 573.02, subd. 1, requires that the plaintiff
commence a wrongful-death action “within three years of the date of [the decedent’s] death” and that an appointed trustee maintain the action for the next-of-kin of the decedent … There is nothing in subdivision 1 that indicates an expert-review affidavit must be served within the three-year statute-of-limitations period to commence a wrongful-death action based on medical malpractice.”
“Similarly, the plain language of Minn. Stat. § 145.682, subd. 2, does not state that the expert-review affidavit must be served before the applicable statute of limitations expires when bringing a claim under Minn. Stat. § 573.02, subd. 1. Instead, it affords plaintiffs enumerated exceptions to serving the expert-review affidavit with the summons and complaint.”
“Our interpretation of the plain language of the statutes, statutory scheme, and caselaw is consistent with the purpose for requiring that parties strictly adhere to the requirements under both the expert-review-affidavit statute and the wrongful-death statute … Allowing appellant’s claim to be dismissed for failure to serve the expert-review affidavit before respondent demanded its production would fail to strictly adhere to the requirements that a demand be made and appellant be allotted 60 days to comply before the district court may dismiss the action on this ground.”
“Under section 145.682, subdivisions 2(1) and 6(a), an expert-review affidavit must be served with the summons and complaint, or within 60 days of demand for the same. Minn. Stat. § 145.682, subds. 2(1), 6(a). This is not a jurisdictional requirement to commencing a wrongful-death action that confers subject-matter jurisdiction on the district court. Instead, it is a mechanism for dismissing meritless lawsuits early on in the litigation. Sorenson, 457 N.W.2d at 191. Any other interpretation would require us to add words to Minn. Stat. § 145.682, subd. 2(1): that when bringing a wrongful-death action based on medical malpractice, the plaintiff must serve the expert-review affidavit before the three-year-limitations period expires.”
The Minnesota Court of Appeals stated in the case it was deciding: “This was the case here, as respondent did not move to dismiss—which appellant treated as a demand—until after the limitations period expired. Because the 60-day safeharbor period begins to run only after a demand for the affidavit is made, respondent’s interpretation would allow a defendant to wait until the statute of limitations expires before making a demand, moving for dismissal, and thereby depriving appellant of the statutory right to cure. See Minn. Stat. § 145.682, subd. 6(a); see also Paulos, 502 N.W.2d at 399 (stating that “[i]f no affidavit is furnished with the complaint, the demand constitutes actual notification to the plaintiff of the statutory requirement,” and “[t]he law then allows another 60 days to comply”). We refuse to adopt respondent’s interpretation, as doing so would frustrate the legislature’s intent in affording plaintiffs 60 days after demand to serve an expert-review affidavit … Because serving the expert-review affidavit is not a prerequisite to filing a wrongful-death action, appellant had 60 days from the date respondent moved to dismiss, which appellant treated as a demand, to serve the affidavit on respondent.”
Source Daulton v. TMS Treatment Center, Inc., A23-0483.
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