• September 8, 2011

Update (September 7, 2011): A significant win for professional malpractice plaintiffs in Minnesota.

Original post (March 1, 2011):  The Minnesota Supreme Court recently granted a petition for review of an “affidavit of expert review case” (Wesely v Flor).  Regular ML readers will know that there have been quite a few disappointed plaintiffs in recent years whose cases have been thrown out of court for the failure to meet the requirements of the Minnesota statutes setting out prerequisites for claims of professional malpractice (some have been covered here).  And sometimes the cases have split the Court of Appeals panels (in the Glumack case, for example).

Sometimes these court decisions detail the unfortunate medical mishaps (alleged mishaps) and injuries that caused the plaintiffs to file suit but the Court of Appeals decision in Wesely is somewhat opaque on that score.

Although the Court of Appeals decision does not detail plaintiff Elaine Wesely’s alleged injuries, the decision still contains some sympathetic facts:  she was a pro se litigant at the time that her critical affidavit of expert review was due.  She met the deadline, but with the affidavit of an internist when the alleged malpractice was dental malpractice.  (For purposes of the appeal, it was stipulated that the internist’s affidavit was deficient.)

She very shortly after got a lawyer who asked for an extension two days after the deadline for the affidavit for an “amended” affidavit (from a different professional, presumably a more qualified one), which the defendants (predictably) refused.  (Query: would any other response to such a request by defense counsel have constituted malpractice on the lawyers’ part???)

So, did the district court abuse its discretion in tossing Ms. Wesely’s case out of court for failure to meet the 180-day deadline for her expert affidavit?  The Minnesota Court of Appeals held it had not.

No way to predict the Supremes ruling at this point on this case although some take the fact that the Court took the case up as slightly positive for the disappointed plaintiff/appellant…

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