SF 3039

as introduced - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to civil actions; regulating certifications 
  1.3             of expert reviews in certain actions against health 
  1.4             care providers; amending Minnesota Statutes 1998, 
  1.5             section 145.682. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  Minnesota Statutes 1998, section 145.682, is 
  1.8   amended to read: 
  1.9      145.682 [CERTIFICATION OF EXPERT REVIEW; AFFIDAVIT.] 
  1.10     Subdivision 1.  [DEFINITION.] For purposes of this section, 
  1.11  "health care provider" means a physician, surgeon, dentist, or 
  1.12  other health care professional or hospital, including all 
  1.13  persons or entities providing health care as defined in section 
  1.14  145.61, subdivisions 2 and 4, or a certified health care 
  1.15  professional employed by or providing services as an independent 
  1.16  contractor in a hospital. 
  1.17     Subd. 2.  [REQUIREMENT.] In an action alleging malpractice, 
  1.18  error, mistake, or failure to cure, whether based on contract or 
  1.19  tort, against a health care provider which includes a cause of 
  1.20  action as to which expert testimony is necessary to establish a 
  1.21  prima facie case, the plaintiff must:  
  1.22     (1) unless otherwise provided in subdivision 3, paragraph 
  1.23  (b) (a), clause (2) or (3), serve upon defendant with the 
  1.24  summons and complaint an affidavit as provided in subdivision 3; 
  1.25  and 
  2.1      (2) serve upon defendant within 180 days after commencement 
  2.2   of the suit an affidavit as provided by subdivision 4. 
  2.3      Subd. 3.  [AFFIDAVIT OF EXPERT REVIEW.] (a) The affidavit 
  2.4   required by subdivision 2, clause (1), must be by the 
  2.5   plaintiff's attorney and state that:  
  2.6      (a) (1) the facts of the case have been reviewed by the 
  2.7   plaintiff's attorney with an expert whose qualifications provide 
  2.8   a reasonable expectation that the expert's opinions could be 
  2.9   admissible at trial and that, in the opinion of this expert, one 
  2.10  or more defendants deviated from the applicable standard of care 
  2.11  and by that action caused injury to the plaintiff; or 
  2.12     (b) (2) the expert review required by paragraph (a) clause 
  2.13  (1) could not reasonably be obtained before the action was 
  2.14  commenced because of the applicable statute of limitations; or 
  2.15     (3) the parties have agreed to a waiver of the expert 
  2.16  review required by clause (1) or the party has applied for a 
  2.17  waiver or modification by the court under paragraph (c). 
  2.18     (b) If an affidavit is executed pursuant to this paragraph 
  2.19  (a), clause (2), the affidavit in paragraph (a), clause (1), 
  2.20  must be served on defendant or the defendant's counsel within 90 
  2.21  days after service of the summons and complaint.  
  2.22     (c) The certification of expert review required under this 
  2.23  section may be waived or modified if the court where the matter 
  2.24  will be venued determines, upon an application served with 
  2.25  commencement of the action, that good cause exists for not 
  2.26  requiring the certification.  Good cause includes, but is not 
  2.27  limited to, a showing that the action requires discovery to 
  2.28  provide a reasonable basis for the expert's opinion or the 
  2.29  unavailability, after a good faith effort, of a qualified expert 
  2.30  at reasonable cost.  If the court waives or modifies the expert 
  2.31  review requirements, the court shall establish a scheduling 
  2.32  order for compliance or discovery.  If the court denies a 
  2.33  request for a waiver under this subdivision, the plaintiff must 
  2.34  serve on the defendant the affidavit required under subdivision 
  2.35  2, clause (1), within 60 days, and the affidavit required under 
  2.36  subdivision 2, clause (2), within 180 days. 
  3.1      Subd. 4.  [IDENTIFICATION OF EXPERTS TO BE CALLED.] (a) The 
  3.2   affidavit required by subdivision 2, clause (2), must be 
  3.3   signed by each expert listed in the affidavit and by the 
  3.4   plaintiff's attorney and state the identity of each person whom 
  3.5   plaintiff the attorney expects to call as an expert witness at 
  3.6   trial to testify with respect to the issues of malpractice or 
  3.7   causation, the substance of the facts and opinions to which the 
  3.8   expert is expected to testify, and a summary of the grounds for 
  3.9   each opinion.  Answers to interrogatories that state the 
  3.10  information required by this subdivision satisfy the 
  3.11  requirements of this subdivision if they are signed by the 
  3.12  plaintiff's attorney and by each expert listed in the answers to 
  3.13  interrogatories and served upon the defendant within 180 days 
  3.14  after commencement of the suit against the defendant or within 
  3.15  180 days after service of the affidavit required by subdivision 
  3.16  3, paragraph (a), clause (2) or (3). 
  3.17     (b) The parties by agreement, or the court for good cause 
  3.18  shown, may by agreement, provide for extensions of the time 
  3.19  limits specified in subdivision 2, 3, or this subdivision.  
  3.20  Nothing in this subdivision may be construed to prevent prevents 
  3.21  either party from calling additional expert witnesses or 
  3.22  substituting other expert witnesses. 
  3.23     (c) In any action alleging medical malpractice, all expert 
  3.24  interrogatory answers must be signed by the attorney for the 
  3.25  party responding to the interrogatory and by each expert listed 
  3.26  in the answers.  The court shall include in a scheduling order a 
  3.27  deadline prior to the close of discovery for all parties to 
  3.28  answer expert interrogatories for all experts to be called at 
  3.29  trial.  No additional experts may be called by any party without 
  3.30  agreement of the parties or by leave of the court for good cause 
  3.31  shown. 
  3.32     Subd. 5.  [RESPONSIBILITIES OF PLAINTIFF AS ATTORNEY.] If 
  3.33  the plaintiff is acting pro se, the plaintiff shall sign the 
  3.34  affidavit or answers to interrogatories referred to in this 
  3.35  section and is bound by those provisions as if represented by an 
  3.36  attorney. 
  4.1      Subd. 6.  [PENALTY FOR NONCOMPLIANCE.] (a) Failure to 
  4.2   comply with subdivision 2, clause (1), within 60 days after 
  4.3   demand for the affidavit results, upon motion, in mandatory 
  4.4   dismissal with prejudice of each cause of action as to which 
  4.5   expert testimony is necessary to establish a prima facie case.  
  4.6      (b) Failure to comply with subdivision 2 (3), clause 
  4.7   (2) paragraph (b) or (c), and subdivision 4 results, upon 
  4.8   motion, in mandatory dismissal with prejudice of each cause of 
  4.9   action as to which expert testimony is necessary to establish a 
  4.10  prima facie case.  
  4.11     (c) Failure to comply with subdivision 4 results, upon 
  4.12  motion, in mandatory dismissal with prejudice of each action as 
  4.13  to which expert testimony is necessary to establish a prima 
  4.14  facie case, provided that an initial motion to dismiss an action 
  4.15  under this paragraph based upon claimed deficiencies of the 
  4.16  affidavit or answers to interrogatories shall not be granted 
  4.17  unless, after notice by the court, the nonmoving party is given 
  4.18  60 days to satisfy the disclosure requirements in subdivision 
  4.19  4.  In providing its notice, the court shall issue specific 
  4.20  findings as to the deficiencies of the affidavit or answers to 
  4.21  interrogatories. 
  4.22     Subd. 7.  [CONSEQUENCES OF SIGNING AFFIDAVIT.] The 
  4.23  signature of the plaintiff or the plaintiff's attorney 
  4.24  constitutes a certification that the person has read the 
  4.25  affidavit or answers to interrogatories, and that to the best of 
  4.26  the person's knowledge, information, and belief formed after a 
  4.27  reasonable inquiry, it is true, accurate, and made in good 
  4.28  faith.  A certification made in violation of this subdivision 
  4.29  subjects the attorney or plaintiff responsible for such that 
  4.30  conduct to reasonable attorney's fees, costs, and disbursements, 
  4.31  and other damages that may be determined by the court.  
  4.32     Sec. 2.  [EFFECTIVE DATE; APPLICATION.] 
  4.33     Section 1 is effective August 1, 2000, and applies to 
  4.34  causes of action arising from incidents occurring on or after 
  4.35  that date.