145.682 CERTIFICATION OF EXPERT REVIEW; AFFIDAVIT.
Subdivision 1. Definition.
For purposes of this section, "health care provider" means a
physician, surgeon, dentist, or other health care professional or hospital, including all persons or
entities providing health care as defined in section
145.61, subdivisions 2 and 4
, or a certified
health care professional employed by or providing services as an independent contractor in
Subd. 2. Requirement.
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, paragraph (b), 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 the suit an affidavit as provided by subdivision 4.
Subd. 3. Affidavit of expert review.
The affidavit required by subdivision 2, clause (1), must
be by the plaintiff's attorney and state that:
(a) the facts of the case have been reviewed by the plaintiff's attorney 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; or
(b) the expert review required by paragraph (a) could not reasonably be obtained before the
action was commenced because of the applicable statute of limitations. If an affidavit is executed
pursuant to this paragraph, the affidavit in paragraph (a) must be served on defendant or the
defendant's counsel within 90 days after service of the summons and complaint.
Subd. 4. Identification of experts to be called.
(a) The affidavit required by subdivision
2, clause (2), must be signed by each expert listed in the affidavit and by the plaintiff's attorney
and state the identity of each person whom plaintiff expects to call as an expert witness at trial
to testify with respect to the issues of malpractice or causation, the substance of the facts and
opinions to which the expert is expected to testify, and a summary of the grounds for each
opinion. Answers to interrogatories that state the information required by this subdivision satisfy
the requirements of this subdivision if they are signed by the plaintiff's attorney and by each
expert listed in the answers to interrogatories and served upon the defendant within 180 days after
commencement of the suit against the defendant.
(b) The parties or the court for good cause shown, may by agreement, provide for extensions
of the time limits specified in subdivision 2, 3, or this subdivision. Nothing in this subdivision
may be construed to prevent either party from calling additional expert witnesses or substituting
other expert witnesses.
(c) In any action alleging medical malpractice, all expert interrogatory answers must be
signed by the attorney for the party responding to the interrogatory and by each expert listed
in the answers. The court shall include in a scheduling order a deadline prior to the close of
discovery for all parties to answer expert interrogatories for all experts to be called at trial. No
additional experts may be called by any party without agreement of the parties or by leave of the
court for good cause shown.
Subd. 5. Responsibilities of plaintiff as attorney.
If the plaintiff is acting pro se, the plaintiff
shall sign the affidavit or answers to interrogatories referred to in this section and is bound by
those provisions as if represented by an attorney.
Subd. 6. Penalty for noncompliance.
(a) Failure to comply with subdivision 2, clause
(1), within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal
with prejudice of each cause of action as to which expert testimony is necessary to establish a
prima facie case.
(b) Failure to comply with subdivision 2, clause (2), results, upon motion, in mandatory
dismissal with prejudice of each cause of action as to which expert testimony is necessary to
establish a prima facie case.
(c) Failure to comply with subdivision 4 because of deficiencies in the affidavit or answers to
interrogatories results, upon motion, in mandatory dismissal with prejudice of each action as to
which expert testimony is necessary to establish a prima facie case, provided that:
(1) the motion to dismiss the action identifies the claimed deficiencies in the affidavit or
answers to interrogatories;
(2) the time for hearing the motion is at least 45 days from the date of service of the motion;
(3) before the hearing on the motion, the plaintiff does not serve upon the defendant an
amended affidavit or answers to interrogatories that correct the claimed deficiencies.
Subd. 7. Consequences of signing affidavit.
The signature of the plaintiff or the
plaintiff's attorney constitutes a certification that the person has read the affidavit or answers to
interrogatories, and that to the best of the person's knowledge, information, and belief formed
after a reasonable inquiry, it is true, accurate, and made in good faith. A certification made in
violation of this subdivision subjects the attorney or plaintiff responsible for such conduct to
reasonable attorney's fees, costs, and disbursements.
History: 1986 c 455 s 60; 1992 c 549 art 8 s 1; 2002 c 403 s 1