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Court vacates ruling on medical malpractice ‘informal conferences’

Brandon Thompson

Brandon Thompson

Lawyers who want more clarity on Minnesota’s so-called “informal conference” statute – a 30-year-old law aimed at streamlining medical malpractice lawsuits — will have to keep waiting.

On Wednesday, Feb. 15, the Minnesota Supreme Court vacated a published decision from a Court of Appeals panel, which ruled last year the law allows defense lawyers to informally solicit “any information or opinion” from a doctor who has treated the plaintiff but is not a party to the underlying malpractice claim.

The high court didn’t wade into the appeals court’s holding that the plain language of the law (Minn. Stat. sec. 595.02, subd. 5) bars district court judges from restricting the scope of questions defense attorneys can pose at the informal conferences.

Instead, the court said that the appeals court simply lacked jurisdiction to take up the case.

While that leaves the key legal question unanswered, the court’s decision highlights at least two important points for appellate practitioners: A protective order is not the same thing as a temporary injunction and the Minnesota Supreme Court is not in the business of issuing advisory opinions.

Justice David Lillehaug

Justice David Lillehaug

The plaintiff in the underlying lawsuit, Anita Howard, originally sought an injunction to limit the lines of questions that defense lawyers could post to her former surgeon, Dr. Mahmoud Nagib, at the informal conference.

The district court declined to grant the injunction but did issue a protective order. The order barred the defense lawyers from asking Nagib about the quality of care Howard received from the defendants — Dr. Shelly Svoboda, Christopher Geisler, a physician assistant, and the Noran Neurological Clinic — and whether their alleged failure to diagnose and treat a spinal infection caused Howard’s paralysis.

The defense promptly challenged the order and the appeals court agreed to take up the issue.

That was a mistake, according to the Supreme Court.

Although Minnesota’s rules of civil procedure permit interlocutory appeals of both injunctions and “orders that have the effect of injunctions,” the Supreme Court said that the protective order in Howard’s case did not clear the bar.

Why not?

For one thing, Justice David Lillehaug wrote in the court’s opinion, the District Court expressly declined to grant an injunction when it issued the protective order.  Additionally, he noted, the judge did not apply the equitable factors which a judge is required to weigh before granting or denying a temporary injunction.

“The district court’s protective order was akin to a routine pretrial regulation of discovery and the parties’ litigation conduct,” wrote Lillehaug, who added that “pretrial procedural orders of this sort are not usually appealable.”

Although the Supreme Court did not resolve the interpretation of the statute, the decision is still a “victory for common sense” because it eliminated the precedent established by the Court of Appeals, said Brandon Thompson, an attorney who represented Howard on appeal.

“The notion that the district court would have absolutely no authority to exercise oversight over the process [of an informal conference] is very hard to justify. It just doesn’t make sense,” said Thompson, a partner at Robins Kaplan who specializes in plaintiff’s side medical malpractice and personal injury litigation.

Had the appeals court’s interpretation of the statute remained in place, Thompson ventured, it would opened the door to potentially abusive practices. For instance, he said, some defense lawyers might exploit the informal conference as a means of delving into irrelevant or embarrassing details of a plaintiff’s medical history.

Among others in the plaintiff’s bar, there is a broad concern that the statute is being used improperly to solicit expert opinions about the cause of an illness or injury, according to veteran St. Paul trial attorney Mark Hallberg.

“It’s gotten out of hand. The original purpose of the statute was to gather information about what a doctor did in providing care to the patient, not to ask the doctor, ‘Do you have opinions about causation?’” said Hallberg, who filed an amicus brief in the case on behalf of the Minnesota Association for Justice.

“As a plaintiff’s lawyer, I’d like to know what the limits and restrictions are. And I think the defense lawyers would like to know the same thing,” he said.

That noted, Hallberg said he was not particularly surprised by the Supreme Court’s decision.

“I would not say they punted,” he said. “I think the Supreme Court re-affirmed its longstanding position that the rules of appellate procedure are to be followed very carefully and very strictly and they are not going to render an advisory opinion on what the law is.”

William Davidson, an attorney for the defendants and a shareholder at the Minneapolis law firm of Lind, Jensen, Sullivan & Peterson, declined to discuss the decision. However, he did offer a written statement that expressed disappointment with the result.

“In terms of appellate procedure, the Supreme Court decided that an appeal of this type should be pursued through a writ of prohibition, something defendants also sought from the Court of Appeals. The Court of Appeals declined to accept the writ, choosing instead to address the separate appeal defendants pursued in the alternative as if the district court’s order was in the nature of an injunction,” the statement reads, in part.

“What this means for future medical malpractice cases is that district courts and practitioners do not have a published decision from either the Court of Appeals or the Supreme Court that addresses whether district courts can impose additional limits on informal conferences,” the statement continues.

As the issue of informal conference statute wended its way through the appellate courts, the statement notes, Howard’s lawsuit went to trial and, a little over a year ago, a Hennepin County jury concluded that the defendants were not negligent in their care and treatment of Howard.

That verdict remains under appeal.

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