Preview:

STATE OF MINNESOTA IN COURT OF APPEALS A09-683 Stacy G. Juetten, Appellant, vs. LCA-Vision, Inc., d/b/a LasikPlus Vision Center, a Delaware corporation, Defendant, David Whiting, MD, Respondent. Filed February 2, 2010 Affirmed Ross, Judge Hennepin County District Court File No. 27-CV-07-18467 Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota; and Mark A. Hallberg, Hallberg & McClain, St. Paul, Minnesota (for appellant) William M. Hart, Cecilie Morris Loidolt, Damon L. Highly, Meagher & Geer, L.L.P., Minneapolis, Minnesota (for respondent)

Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Ross, Judge. SYLLABUS A medical malpractice plaintiff who misses the deadline for serving a defendant corporation with expert witness affidavits required by Minnesota Statutes section 145.682, subdivisions 2(2) and 4 may not avoid dismissal of her suit by amending her

complaint to add a physician defendant whose alleged negligence constitutes the same cause of action as her claim against the original corporate defendant. OPINION ROSS, Judge In this medical malpractice lawsuit based on injuries that allegedly arose from vision-correcting eye surgery, Stacy Juetten appeals the district court's dismissal of her claims against Dr. David Whiting. Juetten had referred to Dr. Whiting in her original complaint but added him to the suit as a defendant after she missed the 180-day deadline for serving the original, allegedly vicariously liable defendant, LCA-Vision, Inc., with expert witness affidavits required by Minnesota Statutes section 145.682, subdivisions 2(2) and 4. Juetten argues that she was entitled to a new deadline calculated from when she added Dr. Whiting as a defendant in the lawsuit and that she served her affidavits on Dr. Whiting before this new deadline. Because we conclude that Juetten's failure to serve the original defendant within 180 days could not be cured by a strategically amended pleading that merely elevated a previously named, allegedly negligent physician to status as a party, we affirm. FACTS In July 2005, appellant Stacy Juetten went to the LasikPlus Vision Center in Edina for a preoperative assessment to determine if she was suited for vision-correcting eye surgery. Juetten's medical history indicated that she was diabetic and had a hyperactive thyroid. Poorly controlled diabetes and hyperthyroidism can diminish a patient's fitness

2

for the surgery.

But in Juetten's case, both conditions were under control with

medication, and neither condition had damaged her eyes. A physician examined Juetten's eyes and discovered superficial punctuate keratitis (SPK). SPK is a condition involving pinpoint inflammations on the eye's surface. The presence of SPK makes surgery less advisable because surgery can aggravate existing SPK and cause dry-eye syndrome. But Juetten's SPK was "trace"--the lowest level of SPK detectable--and could have resulted from the examination itself. Because Juetten's SPK seemed minimal and she had no history of dry-eye problems, the examining doctor informed her that she was a good candidate for surgery. The doctor also discussed with Juetten the potential common complications of surgery, including dryness and vision problems. Juetten returned to LasikPlus Vision Center for her surgery, which was performed by Dr. David Whiting. Before operating, Dr. Whiting generally reviews a patient's medical records, examines her eyes, and determines whether she is a good candidate for surgery. Dr. Whiting was aware that Juetten had trace SPK in both eyes but did not discuss the potential cumulative effect of having SPK, diabetes, and a history of thyroid abnormality with Juetten before the surgery. Within days after her surgery, Juetten developed severe SPK, dry eyes, and vision problems. After efforts to treat these problems failed, Juetten sued respondent LCAVision, which owned and operated LasikPlus Vision Center. Juetten based her claim against LCA-Vision on its vicarious liability for the alleged negligence of Dr. Whiting and the examining doctor, who she claimed had failed to recognize that her pre-existing 3

conditions were contraindications to surgery and failed to treat her SPK or warn her of the risks of and alternatives to surgery. A plaintiff in a medical malpractice suit must serve on the defendant, within 180 days after commencement of the suit, affidavits identifying the expert witnesses the plaintiff expects to testify on her behalf and the substance of the experts' testimony. Minn. Stat.

Download A09-683, Stacy G. Juetten, Appellant, vs. LCA-Vision, Inc., d/b/a LasikPlus Visi

Minnesota Law