Deborah Harris, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1972

Deborah Harris, et al.,
Appellants,

vs.

Daren J. Wickum, M.D., et al.,
Respondents.

Filed August 6, 2018
Reversed and remanded
Halbrooks, Judge

Ramsey County District Court
File No. 62-CV-16-4567

Vincent J. Moccio, Bennerotte & Associates, P.A., Eagan, Minnesota (for appellants)

Richard J. Thomas, Chad J. Hintz, Burke & Thomas, PLLP, Arden Hills, Minnesota (for
respondents)

Considered and decided by Jesson, Presiding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellants challenge the district court’s dismissal of their medical -malpractice
claim for failure to comply with the expert -disclosure requirements of Minn. Stat.
§ 145.682, subd. 4 (2016), arguing that the expert affidavit s sufficiently set forth the

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standard of care and deviation from that standard as required by the statute. We reverse
and remand for trial.
FACTS
Appellant Deborah Harris received treatment from r espondent Daren J. Wickum,
M.D., for a left total knee replacement arthroplasty. During surgery, Dr. Wickum injected
“an intraoperative cocktail of ropivacaine, epinephrine, toradol and morphine” int o
Harris’s periarticular soft tissue in her left knee . Later in the day of her surgery , Harris
developed a left foot drop . Harris alleged that the foot drop was caused by the
intraoperative knee injection that blocked her peroneal nerve and resulted in weakness and
numbness over the peroneal nerve distribution.
Appellants Deborah Harris and Victor Harris filed a complaint with the district
court, alleging that respondents Summit Orthopedics, Ltd. and Dr. Wickum were medically
negligent in the course of injecting an intra operative solution use d for her postoperative
pain management. In support of their claim, appellants submitted an expert -witness
affidavit from Philip Stiver, M.D., pursuant to Minn. Stat. § 145.682, subd. 4 (2016).
Respondents moved to dismiss the case and for summary judgment, alleging that appellants
failed to provide expert testimony that de scribed the chain of causation linking
respondents’ alleged breach of the standard of care to Harris’s claimed injury. In response
to the motion, appellants submitted a supplemental affidavit from Dr. Stiver.
Respondents again moved to dismiss the complaint and for summary judgment ,
reasserting their argument that appellants failed to provide sufficient expert testimony that
described how the alleged breach of care caused Harris’s injury. The district court granted

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respondents’ renewed motion for summary judgment and dismissed the complaint with
prejudice. This appeal follows.
D E C I S I O N
Appellants argue that the district court erred by dismissing their complaint with
prejudice and by granting respondents’ motion for summary judgment based on its
conclusion that Dr. Stiver’s expert affidavits do not satisfy the requirements of Minn. Stat.
§ 145.682, subd. 4(a). We review summary judgment decisions de novo, Riverview Muir
Doran, LLC v. JADT Dev. Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010), but review a
district court’s decision to dismiss a medical-malpractice claim for f ailure to meet the
substantive requirements of M inn. Stat. § 145.682, subd. 4 , for an abuse of discretion ,
Maudsley v. Pederson , 676 N.W .2d 8, 11 (Minn. App. 2004). To consider whether the
district court erred, we must first determine the appropriate standard of review on a ppeal
because the district court dismissed the complaint and granted respondents’ motion for
summary judgment.
In Sorenson v. St. Paul Ramsey Med. Ctr., we considered whether we should analyze
a distri ct court’s order involving the sufficiency of an expert’s affidavit in a medical -
malpractice claim under Minn. Stat. § 145.682 (1986) as a motion for summary judgment
or as a motion to dismiss. 444 N.W.2d 848, 851 (Minn. App. 1989), aff’d, 457 N.W.2d
188 (Minn. 1990). We determined that although both parties and the district court referred
to the order as a summary judgment, “an actual summary judgment was neither sought nor
obtained” because “ respondents argued that appellants failed to meet the statut ory
requirements of Minn. Stat. § 145.682, subds. 2 and 4 (1986) , and that dismissal was

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mandated under Minn. Stat. § 145.682, subd. 6 (1986).” Id. The supreme court agreed
with our characterization of the district court’s order. Sorenson, 457 N.W.2d at 189 n.1.
Here, respondents assert that the affidavit s fail to meet Minn. Stat. § 145.682,
subd. 4(a)’s requirements. Minn. Stat. § 145.682, subd. 6(c) (2016), provides that a failure
to comply with the expert affidavit requirements “results, upon motion, in mandatory
dismissal with prej udice of each action as to which expert testimony is necessary to
establish a prima facie case.” Because a motion to dismiss is the appropriate remedy, as in
Sorenson, we review the district court’s order for an abuse of discretion. Maudsley, 676
N.W.2d at 11.
A plaintiff alleging medical negligence must serve the defendant wi th two
affidavits. Minn. Stat. § 145.682, subds. 2-4 (2016); Anderson v. Rengachary, 608 N.W.2d
843, 856 (Minn. 2000). First, a plaintiff must serve an affidavit that states that the
plaintiff’s attorney reviewed the facts “ 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 .” Minn. Stat. § 145.682, subd. 3(a).
Second, a plaintiff must serve within 180 days of the commencement of discovery an
affidavit that identifies the experts who will testify, the substance of their testimony, and a
summary of the bases for their opinions. Id., subds. 2, 4(a).
The expert affidavit must set forth specific details of the expert’s testimony,
including the standard of care, the acts or omissions that the plaintiff a lleges violated the
standard of care, and an outline of the chain of causation that resulted in the injur y.

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Maudsley, 676 N.W.2d at 13. A plaintiff can refer to affidavits or interrogatory answers to
establish these requirements. Id. General or conclus ory statements regarding either the
standard of care, breach, or the causative chain linking its breach to the injury do not meet
Minn. Stat. § 145.682, subd. 4(a)’s requirements . See Sorenson, 457 N.W.2d at 19 2-93.
The district court determined that Dr. Stiver’s affidavits under Minn. Stat. § 145.682,
subd. 4(a), were insufficient.
A. Standard of Care and Breach
The district court concluded that Dr. Stiver’s affidavits failed to establish the
standard of care and that Dr. Wickum deviated from that s tandard. In reaching this
conclusion, the district court compared Dr. Stiver’s affidavits to the affidavit in Anderson,
608 N.W.2d at 843-46, a case in which the supreme court concluded that the affidavit was
insufficient to establish the standard of care and a breach of that care. The expert’s affidavit
in Anderson stated that “esophageal trauma should be avoided during surgery of this type,”
and that “such trauma to the vagus nerve should not occur.” 608 N.W.2d at 845. The
supreme court reasoned that the expert’s affidavit was insufficient because it “did not state
what particular measures a physician should take to avoid such trauma” and “failed to
describe the defendant’s acts or omissions that allegedly violated th e standard of care and
caused [the] injury.” Id. at 848. Similarly, the supreme court determined that an expert’s
affidavit that stated, “I am familiar with the standard and duty of care applicable to doctors,
midwives, nurses and other medical personnel in the Twin Cities . . . ,” insufficient ly
established the standard of care. See Lindberg v. Health Partners, Inc., 599 N.W.2d, 572,
574-75 (Minn. 1999).

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Here, Dr. Stiver, a board-certified orthopedic surgeon with 32 years of experience,
discussed the standard of care and how Dr. Wickum deviated from that standard in the
following statements in his affidavits:
Orthopedic surgeons are trained as to the techniques for
injection in and around the knee joint. The anatomy of the knee
and the p eroneal nerve and its location are known. Safe
practice methods involve injecting solutions in the area around
the nerve, but not directly into the nerve.

. . . .

Injection into the peroneal nerve represents a departure
from the skill and learning nor mally possessed and used by
orthopedic professionals in good standing in a similar practice
and under like circumstances and constitute a breach of the
standard of care.

. . . .

The peroneal nerve is in a specific anatomical location
on the posterolateral aspect of the knee and is quite reachable
by any postoperative injection technique for post -operative
pain management. It would be very easy to inject directly into
the nerve if one were not careful on needle placement during
the injection. All orthopedic surgeons are aware of the nerve’s
location and how to avoid injection directly into the nerve by
appropriate needle positioning. This is not a difficult or elusive
technique. Here, this technique was not adhered to and the
injury resulted.

This language does not simply state that a surgeon should avoid injury like the
affidavit in Anderson, 608 N.W.2d at 848.
Instead, Dr. Stiver explains the standard of care by stating that a surgeon must avoid
injecting solution directly into the nerve ; that all orthopedic surgeons ar e aware of the
nerve’s location; and that a surgeon can avoid the injury by using appropriate needle

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positioning. Dr. Stiver also describes how Dr. Wickum violated the standard of care by
stating that Dr. Wickum did not adhere to proper needle positioning when injecting the
solution. This is in sharp contrast to the cases noted above, in which conclusory statements
in expert affidavits were held to lack sufficient detail to meet the requirements of Minn.
Stat. § 145.682, subd. 4. We therefore conclude that the district court erred by concluding
that Dr. Stiver’s affidavits failed to sufficiently set forth the applicable standard of care or
the acts by Dr. Wickum that violated that standard of care.
B. Causation
In addition to establishing the standard of care and a breach of that standard, an
expert’s affidavit must outline the chain of causation that resulted in the injur y. See
Maudsley, 676 N.W.2d at 14 (“The primary purpose of an exp ert affidavit is to illustrate
‘how’ and ‘why’ the alleged malpractice caused the injury.”). Again, the affidavit must do
more than merely allege that the physician’s acts caused the injury. Mercer v. Andersen,
715 N.W.2d 114, 122 (Minn. App. 2006).
In Anderson, the supreme court determined that the expert affidavit insufficiently
established causation when the affidavit stated that “there was a deviation from the standard
of care provided to this patient which caused the patient to have postoperative dysphasia
of undetermined etiology.” 608 N.W.2d at 848. The supreme court explained that
“[t]he phrase ‘undetermined etiology’ suggests that the cause of [the plaintiff’s] injury is
unknown and perhaps unrelated to the surgery performed by [the physician]. Thus, [the
expert] failed to adequately describe the alleged negligence on the part of [the physician]
and its relationship to [the plaintiff’s] injury.” Id.; see also Teffeteller v. Univ. of Minn. ,

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645 N.W.2d 420, 429 (Minn. 2002) (determining that an affidavit’s statement that “t he
departures from accepted levels of care, as above identified, we re a direct cause of
[plaintiff’s] death” did not sufficiently outline causation) ; Mercer, 715 N.W.2d at 123
(holding that an affidavit stating that “the departure from the standard of care was a direct
cause of [the plaintiff’s] second degree burns” insufficiently established causation).
Although t he district court chose not to reach the issue of causation because it
determined that the affidavits failed to establish the other two elements of a prima facie
case of medical negligence, we conclude that Dr. Stiver’s affidavits sufficiently establish
a chain of causation. The affidav its explain how Dr. Wickum’s injection caused Harris’s
injury in a step-by-step manner. Dr. Stiver explains: “[I]t is clear from the record and to a
reasonable degree of medical certainty that, at the time of surgery for the left total knee
arthroplasty, the peroneal nerve was inadvertently injected with an intra-operative solution
used for post-operative pain management.” Dr. Stiver’s affidavit further states:
Injection in the area around the nerve would not cause
injury to the nerve. . . . If the nerve is injured by injection it is
because the injection was into the nerve and not in the
surrounding tissue. This can occur one of three ways. Direct
injection into the nerve can damage the nerve by the needle tip
cutting individual nerve fascicles that make up the nerve
bundle. Another method of injury by direct injection is the
distention pressure created by injection of the volume of
anesthetic cocktail into the nerve separating fascicles and
damaging individual nerve fascicles or nerve sheath and its
blood supply. A third way for injury by injection into the nerve
is a result of direct chemical irritant/damage caused by the
various chemicals making up the injection cocktail and or their
preservatives contained therein.

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The affidavits then discuss that a surgeon can avoid injury through appropriate needle
positioning and conclude “[that] technique was not adh ered to and the injury resulted. ”
The affidavits previously identified the resulting injury as “a foo t drop on the operative
side” that included “symptoms of weakness and numbness over the peroneal nerve
distribution” and “di minished sensation in both the sural and superficial peroneal nerve
distribution.”
Dr. Stiver’s affidavits do not simply allege that Dr. Wickum’s departure fr om the
standard of care caused Harris’s injury or that the cause of the injury was unknown. Cf.
Anderson, 608 N.W.2d at 848 ; Mercer, 715 N.W.2d at 123 . Instead, Dr. Stiver opines
specifically that Dr. Wickum’s negligence in injecting the medication into Harris’s
peroneal nerve caused her foot drop. This specificity distinguishes Dr. Stiver’s opinions
from the insufficiently detailed affidavits in other cases.
Respondents argue, however, that the affidavits do not satisfy the causation standard
because they fail to eliminate all other possible causes of Harris’s injury. We disagree with
this reasoning. A plaintiff is not required to rule out all other possible causes of injury in
order to establish c ausation in a negligence action . See Bauer v. Friedland , 394 N.W.2d
549, 554 (Minn. App. 1986) (“[A] person is not required to prove her theory of negligence
by testimony so clear as to exclude every other possible theory.”).
We further note that our conclusion that Dr. Stiver’s affidavits satisfy Minn. Stat.
§ 145.682, subd. 4(a) , is consistent with the statute’s purpose, which is “to eliminate
frivolous medical-negligence lawsuits by requiring that plaintiffs file affidavits verifying
that their alleged claims are well founded.” Maudsley, 676 N.W.2d at 12 . The affidavits

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in this case describe a prima facie case of medical negligence with sufficient detail to
ensure that Harris is not bringing a meritless claim. Because we conclude that Dr. Stiver’s
affidavits satisfy the expert affidavit requirements of Minn. Stat. § 145.682, subd. 4(a), we
reverse the district court’s order dismissing Harris’s complaint with prejudice and remand
for trial.
Reversed and remanded.