Robert Bonczek v. Donald Erickson, DDS, Mark Wilson, Periodontist, Mayo Clinic - Rochester, University of Minnesota - Minneapolis, City of Minneapolis ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2103
Robert Bonczek,
Appellant,
vs.
Donald Erickson, DDS,
Respondent,
Mark Wilson, Periodontist,
Respondent,
Mayo Clinic - Rochester,
Respondent,
University of Minnesota - Minneapolis,
Respondent,
City of Minneapolis, et al.,
Respondents.
Filed July 28, 2014
Affirmed
Hooten, Judge
Hennepin County District Court
File No. 27-CV-13-5215
Robert Bonczek, Minneapolis, Minnesota (pro se appellant)
John M. Degnan, W. Knapp Fitzsimmons, Briggs and Morgan, P.A., Minneapolis,
Minnesota (for respondent Erickson)
Katherine A. McBride, Barbara A. Zurek, Meagher & Geer, P.L.L.P., Minneapolis,
Minnesota (for respondent Wilson)
Heather M. McCann, Dorsey & Whitney LLP, Minneapolis, Minnesota (for respondent
Mayo Clinic)
William P. Donohue, General Counsel, Tracy M. Smith, Deputy General Counsel,
Timothy J. Pramas, Senior Associate General Counsel, Minneapolis, Minnesota (for
respondent University of Minnesota)
Susan L. Segal, Minneapolis City Attorney, Andrea K. Naef, Assistant City Attorney,
Minneapolis, Minnesota (for respondent City of Minneapolis)
Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this pro se appeal, appellant challenges the district court’s dismissal of his
complaint alleging dental malpractice, arguing that he was not required to serve
respondents an affidavit of expert review under Minn. Stat. § 145.682 (2012). He also
challenges the denial of his motion to remove the district court judge for cause. We
affirm.
FACTS
In March 2013, appellant Robert Bonczek sued respondents Donald Erickson,
Mark Wilson, the Mayo Clinic, the University of Minnesota, and the City of Minneapolis
for “dental malpractice, negligence.” The complaint indicates Bonczek’s belief that his
action must be commenced within two years and his request for a 90-day extension to
serve a statutorily required affidavit of expert review. The complaint explained that
“[t]he stated purpose of this complaint was to comply with the statutory requirements.”
In an affidavit attached to the complaint, Bonczek, who is not an expert, states that he
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needs surgery for the removal and replacement of five implants, bone grafting, the
placement of a healing plate, and the filling of holes in the implants. He also claims that
he has suffered infections twice as a result of the dental implants. In his motion
requesting the 90-day extension, Bonczek claims that he has seen or attempted to see 25
dentists for an evaluation, but that he has not been able to secure an affidavit of expert
review.
All respondents except Wilson moved to dismiss Bonczek’s complaint for failure
to state a claim upon which relief can be granted under Minnesota Rule of Civil
Procedure 12.02(e). At the hearing on the motions on June 19, 2013, the district court
acknowledged that Bonczek appeared to have filed his lawsuit at that time because
Bonczek was concerned that there was a two-year, rather than a four-year, statute of
limitations. Bonczek agreed, characterizing the complaint as “an interim step.”
The district court inquired whether Bonczek had sought legal assistance. Bonczek
claimed that he had, but without success. The district court encouraged Bonczek to
continue seeking help and referenced several resources.
Noting that Bonczek was pro se, the district court orally denied the motions to
dismiss and gave Bonczek 90 days to file an amended complaint. The district court
informed Bonczek about what was needed in a complaint to avoid dismissal:
When you file a lawsuit, if you’re asserting a claim of
negligence, you need to demonstrate there was a duty owed.
So, the professional, the dentist here, owed you a duty of
professional care. You need to allege that they breached that
duty. You need to allege that the breach caused damages, and
you need to allege that you were damaged.
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The district court also pointed out that the motions to dismiss outlined the legal elements
that Bonczek needed to address. The district court cautioned Bonczek that it would
dismiss his claims with prejudice if he failed to meet the minimum threshold of asserting
a claim.
Toward the end of the hearing, the university asked the district court to stay
discovery. Bonczek responded that he requested x-rays and other documents in order to
show prospective attorneys the extent of his injuries. The university clarified that it
believed that Bonczek could request and pay for the x-rays himself, and that it attached
Bonczek’s medical documents to its motion to dismiss. The district court granted the
university’s request and stayed discovery until Bonczek filed his amended complaint,
explaining that discovery is expensive. The district court also noted that Bonczek could
request x-rays at his own expense and that the university attached his medical records to
its motion to dismiss.
In giving Bonczek an additional 90 days (until September 17, 2013) to amend his
complaint, the district court also instructed that:
Bonczek must also file either an affidavit of expert review or
an affidavit explaining that the expert review could not have
been reasonably obtained and requesting a ninety day
extension. Minn. Stat. § 145.682, subd. 3. If Bonczek fails to
comply with these requirements, his amended complaint will
be dismissed with prejudice. Id. § 145.682, subd. 6.
Wilson separately moved to dismiss Bonczek’s complaint for failure to comply
with section 145.682. A hearing on Wilson’s motion was held on August 21, 2013.
Bonczek alleged that, because of Wilson’s interference with potential experts, he had not
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been “allowed to get” an affidavit of expert review. But, when questioned about this
allegation, Bonczek was unable to present any specific evidence of interference with his
efforts to find an attorney or expert by any of the respondents. The district court
encouraged Bonczek to seek assistance outside of the Twin Cities area. Rather than
ruling on Wilson’s motion, the district court cautioned Bonczek that he needed to comply
with the statute and file an affidavit of expert review by September 17.
After the hearing, Bonczek brought a motion to remove the district court judge
under Minnesota Rule of Civil Procedure 63.02 for interest or bias and requested that the
district court lift the stay on discovery. At the September 17 hearing, the district court
asked Bonczek if he was able to secure an affidavit of expert review. Bonczek admitted
that he failed to do so, but asserted that he could prove his claims without expert
testimony. He also argued that the university would not provide him his records. The
university reiterated that it had produced Bonczek’s medical records with the exception
of the x-rays and that Bonczek could obtain the x-rays at his expense.
The district court denied Bonczek’s motion to remove, granted respondents’
motions to dismiss, and dismissed Bonczek’s claims with prejudice under both rule
12.02(e) and section 145.682. Bonczek appeals.
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DECISION
I.
Bonczek challenges the district court’s dismissal of his dental-malpractice claims
with prejudice under section 145.682.1 We review a dismissal for failure to comply with
section 145.682 under an abuse-of-discretion standard. Haile v. Sutherland, 598 N.W.2d
424, 426 (Minn. App. 1999). A district court abuses its discretion when its ruling is
based on an erroneous view of the law, against the facts in the record, or exercises its
discretion in an arbitrary or capricious manner. City of North Oaks v. Sarpal, 797
N.W.2d 18, 24 (Minn. 2011).
“Expert testimony is generally required in medical-malpractice cases because they
involve complex scientific or technological issues.” Mercer v. Andersen, 715 N.W.2d
114, 122 (Minn. App. 2006). Where expert testimony is necessary to establish a prima
facie case of dental malpractice, a plaintiff must meet two requirements set forth in
Minnesota Statutes section 145.682, subdivision 2. Anderson v. Rengachary, 608
N.W.2d 843, 846 (Minn. 2000). Only the first of those requirements is at issue here:
“[T]he plaintiff must serve with the complaint an affidavit of the plaintiff’s attorney
stating that the attorney has reviewed the case with an expert and that in the expert’s
opinion the defendant injured the plaintiff due to a deviation from the standard of care.”
Anderson, 608 N.W.2d at 846; see also Minn. Stat. § 145.682, subds. 2, 3. This
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We note that Bonczek failed to address the district court’s other basis for dismissing his
complaint—failure to state a claim upon which relief may be granted under rule 12.02(e).
This renders any argument on that ground waived. See Melina v. Chaplin, 327 N.W.2d
19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived).
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requirement applies to plaintiffs proceeding pro se, Minn. Stat. § 145.682, subd. 5. And
it applies to malpractice cases against dentists, periodontists, clinics, and hospitals. See
id., subd. 1 (including in the definition of “health care provider” dentists, health care
professionals, hospitals, and all persons and entities providing health care). Failure to
comply with the statute “results, upon motion, in mandatory dismissal with prejudice of
each cause of action as to which expert testimony is necessary to establish a prima facie
case.” Id., subd. 6.
The district court dismissed Bonczek’s complaint under section 145.682 because
Bonczek failed to file an affidavit of expert review. The district court did not abuse its
discretion. Bonczek’s affidavit attached to his complaint does not indicate that Bonczek
reviewed his claims with a medical expert or that a medical expert believes that any of
the respondents injured Bonczek by deviating from the standard of care. Because strict
compliance with the requirements of the statute is mandated, the district court did not err
in dismissing Bonczek’s claims with prejudice.
While Bonczek concedes that he did not serve an affidavit of expert review, he
contends that the district court should have “taken an equitable approach to the problem”
and that the filing of the complaint and summons was merely an “interim step.”
Bonczek’s argument is without merit. “The Minnesota legislature enacted Minn. Stat.
§ 145.682 for the purpose of eliminating nuisance medical malpractice lawsuits by
requiring plaintiffs to file affidavits [of expert review] verifying that their allegations of
malpractice are well-founded.” Stroud v. Hennepin Cnty. Med. Ctr., 556 N.W.2d 552,
555 (Minn. 1996). “So as not to undermine the legislative aim of expert review and
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disclosure, we have stressed that plaintiffs must adhere to strict compliance with the
requirements of Minn. Stat. § 145.682.” Broehm v. Mayo Clinic, 690 N.W.2d 721, 726
(Minn. 2005). Pro se plaintiffs are not excused from strictly complying with the statute.
See Paulos v. Johnson, 502 N.W.2d 397, 398–400 (Minn. App. 1993) (affirming
dismissal because pro se appellant failed to comply with sections 145.682’s “absolute
mandate” of providing an affidavit of expert review within 90 days of filing complaint),
review denied (Minn. Sept. 10, 1993).
Bonczek also contends that the district court abused its discretion by dismissing
his claims under section 145.682 because he can establish liability without expert
testimony. “Expert testimony is not necessary where the facts to be determined are
within the common knowledge of the jury and where the results of surgical or medical
treatment, viewed in the light of all the circumstances, provide a sufficient evidentiary
basis to support an inference of negligence.” Bauer v. Friedland, 394 N.W.2d 549, 553
(Minn. App. 1986) (quotation omitted).
However, inconsistent with his current argument on appeal that expert testimony is
not necessary, Bonczek’s complaint contains a request for a 90-day extension to acquire
an affidavit of expert review. The only information regarding Bonczek’s injuries in the
record is his affidavit attached to the complaint, which does not convey that the facts to
be determined are within the jury’s common knowledge and that the results of whatever
treatment Bonczek obtained provide an evidentiary basis to support an inference of
negligence. Also, because “expert testimony is necessary to support all but the most
obvious medical malpractice claims,” Haile v. Sutherland, 598 N.W.2d 424, 428 (Minn.
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Ohio App. 1999), there is no merit to Bonczek’s arguments that his claims are within the
common knowledge of jurors. Bonczek was not able to show that jurors are
knowledgeable about the standard of care required of dentists in dental implant surgeries,
the causes of infection in implants, or when the surgical removal of implants was
required.
Bonczek responds that he was not allowed to collect evidence to show that his
claim could be established without expert testimony and to show excusable neglect, and
that the district court’s decision to stay discovery rendered it “impossible to obtain
information required to file the amended complaint.” But Bonczek did not explain how
further discovery would buttress his claim that he would be able to prove his claim
without expert testimony. The district court “has wide discretion to issue discovery
orders and, absent clear abuse of that discretion, normally its order with respect thereto
will not be disturbed.” Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d
916, 921 (Minn. 1990). The district court, noting the expenses associated with discovery,
granted a stay of discovery until Bonczek submitted his amended complaint. At the same
time, Bonczek was provided with a copy of his medical records and was told by the
district court that he could obtain his x-rays from the university at his own expense.
Under these circumstances, the district court did not abuse its decision in staying
discovery because no legally sound complaint had been served and filed by Bonczek.
See Spurck v. Civil Serv. Bd., 231 Minn. 183, 189, 42 N.W.2d 720, 724 (1950) (defining
discretion as “the power or right of acting officially according to what appears best and
appropriate under the circumstances” (quotation omitted)).
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Bonczek contends that the district court abused its discretion because he can show
excusable neglect for failing to comply with section 145.682. But Bonczek did not argue
excusable neglect to the district court. Therefore, we decline to address it here. Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally do not
consider matters not argued to and considered by the district court).
II.
Bonczek challenges the district court’s denial of his motion to remove the district
court judge for interest or bias. “We will not reverse a district court’s decision to deny a
removal motion absent an abuse of discretion.” Haefele v. Haefele, 621 N.W.2d 758, 766
(Minn. App. 2001), review denied (Minn. Feb. 21, 2001). “No judge shall sit in any case
if that judge is interested in its determination or if that judge might be excluded for bias
from acting therein as a juror.” Minn. R. Civ. P. 63.02. A judge who has already
presided at a proceeding may not be removed except upon an affirmative showing of
prejudice. Minn. R. Civ. P. 63.03. “In order for bias or prejudice to be disqualifying it
must stem from an extrajudicial source and result in an opinion on the merits on some
basis other than what the judge learned from his participation in the case.” Pedro v.
Pedro, 489 N.W.2d 798, 804 (Minn. App. 1992) (quotation omitted), review denied
(Minn. Oct. 20, 1992).
Bonczek’s frustration with the district court’s adverse rulings is apparent. He
asserts that the district court judge ignored his theory that he could prove his case without
expert testimony and claims that the district court judge asked him to leave the courtroom
before the conclusion of the August hearing on Wilson’s motion to dismiss. But the
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district court did not abuse its discretion by dismissing his case for failing to comply with
section 145.682 or by staying discovery, and nothing in the record indicates that either
decision was made out of prejudice or bias against Bonczek. See Olson v. Olson, 392
N.W.2d 338, 341 (Minn. App. 1986) (stating that “[p]rior adverse rulings . . . clearly
cannot constitute bias”).
Rather, the record indicates that the district court judge went out of his way to
assist Bonczek in presenting the case. The district court judge entertained Bonczek’s
claims, explained to Bonczek what he needed to include in an amended complaint, and
encouraged Bonczek to seek legal assistance and to consult with dentists outside of the
Twin Cities area in order to obtain an affidavit of expert review.
Finally, there is no support in the record for Bonczek’s claim that the district court
judge asked him to leave at the August hearing. Rather, the transcript of the hearing
establishes that the district court judge allowed Bonczek to fully participate, and the
result of the hearing was favorable to Bonczek in that the district court reiterated that
Bonczek had until September 17 to serve an affidavit of expert review, rather than
dismissing Bonczek’s case against Wilson at that time.
Based upon this record, the district court did not abuse its discretion by denying
Bonczek’s motion to remove.
Affirmed.
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