Legal Outline
Elements of a medical malpractice claim
There are generally four elements that need to be proven to succeed in a medical malpractice claim. First, the plaintiff must demonstrate the accepted and recognized standard of care that applies to the healthcare provider’s conduct. There isn’t generally a manual or guidebook that says what a doctor is supposed to do under specific circumstances. […]
Learn MoreInformal Conferences with Treating Physicians
Defendants in Minnesota personal injury cases do not have the right to meet with a plaintiff’s treating physician. Most HIPAA releases signed by Minnesota personal injury attorneys will allow for the release of medical records from a treating provider but expressly preclude in-person discussions between a defendant’s representative and the patient’s treating doctor. Minn. Stat. […]
Learn MoreIn 2023, Minnesota changed the law to allow survival actions
UPDATE: The previous post below is no longer accurate in light of the amendment of Minn. Stat. 573.01 on May 20, 2023. That statute was amended to allow a personal injury claim to “survive[] the death of any party” as opposed to “die[] with the person.” Previous post: Minnesota is in the minority of states […]
Learn MoreWrongful Death Damages
Damages in a Minnesota wrongful death lawsuit are defined as the pecuniary loss suffered by the next of kin. Minn. Stat. § 573.02. “Pecuniary” means money and the relevant jury instruction asks the jury to determine an amount of money that will fairly and adequately compensate the next of kin for the losses that they […]
Learn MoreDuty analysis
Like any lawsuit based on negligence, “the existence of a duty running from the defendant to the plaintiff is a prerequisite to a finding of malpractice liability.” Warren v. Dinter, 926 N.W.2d 370 (Minn. 2019) quoting Molloy v. Meier, 679 N.W.2d 711, 717 (Minn. 2004). When there is a physician-patient relationship, a duty of due […]
Learn MoreNo Discovery Rule
Minnesota does not recognize a discovery rule for medical malpractice. Fabio v. Bellomo, 504 N.W.2d 758 (Minn. 1993). Anybody who says otherwise, including any other legal website, is wrong. In practice, what this means is that the patient’s knowledge of the injury (or even what the patient should reasonably know about the injury) is not […]
Learn MoreMinnesota’s hip-pocket service
In Minnesota, litigation is generally commenced upon service of the summons. Minn.R.Civ.P. 3.01. This is a unique framework and is different from most states and the federal court system that commence lawsuits on filing with the court. Rule 5.04 sets a one-year deadline for the case to be filed with the court or it will […]
Learn MoreA note about expert affidavit caselaw
The substance of 145.682 affidavits has been the subject of a number of appeals, but there are a few procedural issues under Minnesota law that prevent us from truly understanding what these affidavits need to say to be sufficient. First, Minnesota law rarely allows for interlocutory appeals, so the only decisions that give rise to […]
Learn MoreWhen is an expert affidavit required?
An expert disclosure to Minn. Stat. § 145.682 is not required if the negligence can be established through facts within the common knowledge of laypeople. Tousignant v. St. Louis County, 615 N.W.2d 53 (Minn. 2000). But beware: expert testimony “is necessary to support all but the most obvious medical malpractice claims.” Haile v. Sutherland, 598 […]
Learn MoreExpert discovery
Litigation in Minnesota state courts does not typically involve expert depositions. Minn.R.Civ.P 26.02(e). Expert opinions are disclosed in written form absent a motion and order from the court. Id.
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