Is Minnesota's Expert Affidavit Requirement for Medical Malpractice Cases Constitutional?

In 1986, the Minnesota legislature enacted Minn. Stat. 145.682, a law that requires medical malpractice claimants to obtain expert support for a claim prior to commencing suit. This statute represented a departure from the general rule that any person harmed by the negligence of another could commence suit without first obtaining expert support. Because the statute gives preferential treatment to negligent healthcare providers and otherwise impedes a claimant's access to the court system, one has to ask whether the statute is constitutional.

Under Article 12, Section 1 of the Minnesota Constitution, the legislature is prohibited from enacting special laws "where a general law can be made applicable . . . . " The purpose of the prohibition on special laws is to bar the legislature from giving preferential treatment to certain persons over others, and this is precisely what Minn. Stat. 145.682 does by giving preferential treatment to healthcare providers.

Minnesota courts have not addressed whether Minn. Stat. 145.682 is an unconstitutional special law, but the Oklahoma Supreme Court considered a similar statute in Zeier v. Zimmer, 2006 OK 98. Like Minnesota, the Oklahoma legislature had enacted a statute requiring medical malpractice claimants to obtain and verify the existence of expert support prior to commencement of suit. The Oklahoma Supreme Court held that the statute was an unconstitional special law because it treated those harmed by negligent medical care differently than those harmed by other types of negligence. When the Oklahoma legislature later attempted to resurrect the statute by extending the requirement of obtaining expert support for claims against all professionals, including healthcare providers, attorneys, accountants, etc., the Oklahoma Supreme Court again declared the statute unconstitutional as it did little more than extend preferential treatment to a a larger number of professionals. Wall v. Marouk, 2013 OK 6.

In both Zeier and Wall, the Oklahoma Supreme Court also held that the statute at issue created an unconstitutional impediment to equal access to medical malpractice claimants because they would often be required to incur several thousand dollars for expert review as a prerequsite to access to the court system. Because Minn. Stat. 145.682 puts this same burden on medical malpractice claimants, the reasoning followed in Zeier and Wall suggests that Minn. Stat. 145.682 violates Article 1, Section 8 of the Minnesota Constitution, which grants every Minnesotan the right to "obtain justice freely and without purchase" in our court system.

As a practical matter, the constitutionality of Minn. Stat. 145.682 may not be decided for some time as claimants will make every effort to obtain expert support for the claim prior to commencement of suit as the risk of not doing so and litigating the constitional question is too high. The issue is most likely to be litigated when a claimant is facing a statute of limitations deadline and is unable to obtain expert support in a timely manner to proceed with the claim. (Note: if a statute of limitations deadline is impending and there is not a reasonable opportunity to obtain expert support for the claim, a medical malpractice claimant can commence suit but must obtain expert support within 90 days or face dismissal of the case.) When the circumstance presents itself, claimants challenging the constitutionality of Minn. Stat. 145.682 would be well advised to include arguments that the statute violates the prohbitions against special laws and denial of free access to our court system.