Minnesota Medical Malpractice

Legal Outline

Expert Affidavit Safe-Harbor Provision

Motions to dismiss pursuant to the Minnesota medical malpractice affidavit statute have their own timeline. The motion to dismiss pursuant to section 145.682 requires the hearing to be at least 45 days from the date the motion is served. During this 45-day period, the statute allows for the service of an amended affidavit correcting any claimed deficiencies.

The 45-day period can be used to substitute experts when the alleged deficiency is the original expert’s qualifications. Wesely v. Flor, 806 N.W.2d 36 (Minn. 2011)

The supplemental opinion is timely if it is served within the 45-day safe-harbor provision even if it is outside the initial 180-day disclosure period under the statute. Id.

The independent timeline for these motions allows for some shenanigans. For example, the statute requires that “the motion to dismiss the action identif[y] the claimed deficiencies in the affidavit or answers to interrogatories.” Minn. Stat. 145.682, subd. 6(c)(1). But because the Minnesota General Rules of Practice require briefs in support of a dispositive motion to be served within 28 days of the hearing date. Minn. Gen. R. Prac. 115.03(a). So you may get a barebones Notice of Motion and Motion served at 45 days with general accusations that an expert opinion is deficient but not actually find out the specifics of the criticism until the brief is served several weeks later. I have argued that this is improper and that the timeline in the statute supersedes the rules of practice because the legislature intended that the claimant would get the full 45-day period to correct deficiencies. This issue has not been specifically addressed by the appellate courts, to my knowledge.

Also, the General Rules of Practice require a response brief, along with “Supplementary affidavits and exhibits” to be served at least 14 days before the hearing. I have seen it argued that any supplemental expert affidavit must be served along this timeline, but the Minnesota Court of Appeals rejected it and gave the plaintiff up until the time the hearing on the motion begins to serve the supplemental opinions. Pfeiffer v. Allina Health System, 851 N.W.2d 626 (Minn.App. 2014).