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Motion denied in medical lawsuit

By Staff | Oct 6, 2008

A malpractice suit against Fairmont Orthopedics & Sports Medicine and a former doctor will proceed.

Faribault County District Court Judge Douglas Richards denied a motion to have the case against the medical center and Dr. James Schwartz tossed out.

“We believe the judge made the correct decision. He said that the original affidavits filed were adequate under state law,” says Tim McCarthy, attorney for Urban Neisen.

In June, attorneys for the defendants argued that Neisen failed to comply with procedural requirements under state law for making a claim of medical malpractice.

Schwartz’s attorney James Roegge says Neisen did not provide expert medical opinions explaining the standard of care required by his client while providing treatment.

In his ruling, Richards says three affidavits of medical experts supplied by Neisen’s attorney complied with state law.

In addition, a supplemental review was filed timely on June 18, six days before the hearing to dismiss.

“If a defendant makes a motion to dismiss under the statutory process, the plaintiff may correct the alleged deficiencies in a supplemental affidavit, provided the plaintiff serves the affidavit before the hearing on the motion,” wrote Richards.

These affidavits, says Richards satisfy the “threshold requirements” of Minnesota Statute 145.682.

A complaint filed in January names Schwartz, Fairmont Orthopedics, certified nurse anesthetist Robert Karl and United Hospital District.

In his suit, Neisen contends movement of his head during spinal surgery resulted in serious injury.

“The defendants failed to correctly position and monitor Neisen’s head position during surgery, causing trauma to his eye which resulted in permanent blindness in his left eye,” says the complaint.

UHD was named in the suit as a negligent and respondent supervisor because Schwartz, Karl and Fairmont Orthopedics were acting as agents of the hospital.

Neisen has been required, says the complaint, to extend substantial sums of money for medical, hospital and related care and will be required to do so in the future — all in excess of $50,000.

A trial is expected to take place sometime in May.