When 180 Days Does Not Equal 180 Days
Kaplan v. Mayo Foundation et al., Civil No. 07-3630 (JRT/JJK) (D. Minn. 10/27/2008), JOHN R. TUNHEIM, United States District Judge.
In recognition of the risk of forcing non-culpable defendants to defend against non-meritorious medical malpractice claims (and other professional malpractice, as well), the Minnesota legislature has long had in place some hurdles known as the Affidavit of Expert Review. The statute calls for two expert affidavits – one to accompany the filing of the complaint and a far more comprehensive affidavit within 180 days thereafter. Plaintiffs’ lawyers (or pro se litigants) overlook these requirements from time to time with fatal consequences for their claims. In this recent case, Judge Tunheim cut the plaintiff some slack. He was plainly influenced in part by the plaintiff’s having begun the suit pro se and also by his sense that the defendants were not prejudiced by the lateness of the second affidavit. Judge Tunheim did, however, take the opportunity of dismissing the claim against one defendant, a surgeon, as the allegations were not that the surgery had been improper but, rather, the diagnosis that resulted in the surgery was negligent.