Minnesota Medical Malpractice

Legal Outline

Timing for Service of Expert Affidavits

Minnesota’s expert affidavit requirement in medical malpractice cases is the most significant procedural concern for any plaintiff pursuing a case. Failing to comply with its intricate requirements can lead to extremely harsh consequences, including the dismissal of a case regardless of merit.

As it relates to timing of these affidavits, there are several pitfalls. Under the plain text of the statute, the affidavits must be served within 180 days after discovery commences under Minnesota rules. The statute incorporates Rule 26.04(a) and the “commencement of discovery” as the point to start this clock. Under that rule, discovery may not be sought until the parties have met, conferred, and created a discovery plan under Rule 26.06(c). Under Rule 26.06(a), this conference must take place within 30 days from “the initial due date for an answer.” The initial answer is due 20 days from the service of the initial pleadings.

For attorneys trying to docket this extremely important deadline, this cascading set of dates is confusing and uncertain, which can be a major cause for concern. You’ve just drafted the Summons, Complaint, and Affidavit of Expert Review on your case and sent it out for service. When do you set your internal deadline to serve the affidavits identifying your experts and their opinions? The safe answer is to set your deadline 180 days from today and to carefully document any reason why you think the rules give you more time.

In Firkus v. Harms, 914 N.W.2d 414 (Minn. App. 2018), the parties never commenced formal discovery under Rule 26.04(a) but the trial court still started the clock on the plaintiff to serve expert identification affidavits. The court looked at how Rule 26.06(a) requires the discovery conference within 30 days of the initial due date for an answer and set that date as the latest date at which formal discovery could commence. The court of appeals agreed and held that while discovery could commence sooner under the rules, this was the latest date and the 180-day clock must start running at that point.

When the expert affidavit statute was written, Minnesota did not follow any delayed discovery approach. It was the practice of many plaintiff attorneys to serve interrogatories and deposition notices along with their initial pleadings. In medical malpractice cases, early discovery could help inform the experts with the necessary information for their 180-day disclosure. But with the delayed commencement of discovery under Rule 26.06, this is not possible anymore and it could be several months before a plaintiff had the opportunity to find out information about the case that might exist outside of his or her own medical records. The Minnesota legislature agreed that this was unfairly abbreviating the 180-day timeline and changed the provision to start counting the days from the commencement of discovery. To the extent that Firkus starts the clock without actual commencement of the discovery process, this effort by the legislature was frustrated. Plaintiff attorneys would be wise to file their case early with the court, stick to all discovery deadlines, and push hard for all depositions that are needed to complete the expert disclosures. Six months can go very fast.

In summary, a claimant has somewhere between 180 and 230 days from the service of the initial pleadings to serve the expert affidavit required by Minn. Stat. § 145.682 subd. 4. Because the failure to serve this affidavit can result in an automatic dismissal of the case with prejudice, attorneys would be wise to be as careful as possible with respect to these timelines.