A Minnesota Judge Cannot Order a Medical Malpractice Case Into Mediation

In the ordinary Minnesota civil case, a party who refuses to mediate loses that argument. Minn. Gen. R. Prac. 114.04(b): “If the parties cannot agree on an ADR process, the court shall order the parties to use a non-binding ADR process.”

Medical malpractice is carved out of that rule by name. Rule 114.01(a) provides that “[a]ll civil and family cases are subject to this rule except,” and then lists seven exceptions. The first is the one that matters here:

(1) As provided in Minnesota Statutes, section 604.11 (medical malpractice);

And what § 604.11 provides instead is one sentence: “All parties must agree unanimously before alternative dispute resolution proceeds.”

That’s the biggest thing in the statute, and almost nobody talks about it. A malpractice defendant who doesn’t want to mediate doesn’t have to. Neither does a plaintiff. There’s no motion to bring, because there’s no order for the court to enter.

Malpractice isn’t the only carve-out from Rule 114. The full list of seven is below, and at least one of the others is a flatter bar than this one. But it’s the carve-out that reaches the biggest share of ordinary tort litigation, and it’s the one practitioners are most likely to run into without knowing it’s there.

Does § 604.11 say anything about how a malpractice case is tried?

No. The section often gets described as Minnesota’s medical malpractice trial-procedure statute, and it isn’t one.

Section 604.11 has three subdivisions: subdivision 1, “Discovery”; subdivision 2, “Alternative dispute resolution”; and subdivision 3, “Uniform interrogatories.” There’s no subdivision 4. The word “verdict” doesn’t appear anywhere in the section. There’s no itemized-verdict form, no special-verdict requirement, no damages-allocation instruction, no periodic-payment provision, and no rule about what the jury may be told.

And there isn’t one hiding elsewhere in the chapter. Chapter 604 carries a single subject heading for “MEDICAL MALPRACTICE,” and § 604.11 is the only section under it. The chapter’s repealed sections, §§ 604.05, 604.07, 604.08, and 604.09, are exactly where several of the trial-stage rules people remember used to live, and they were repealed in 1988 and 1994. We’ve written about that gap and what’s actually left of Minnesota’s future-damages machinery: Minnesota has no statute that reduces your future damages to present value.

So if you came looking for the malpractice trial statute, Minnesota doesn’t have one. What it has is a discovery statute, and the two provisions that actually change how a malpractice case gets litigated are both in it.

The other two statutes people confuse with this one are the expert affidavit gate under § 145.682, covered in Minnesota’s expert affidavit deadlines, and the limitations period under § 541.076, covered in four years is the easy part. Neither one is § 604.11, and § 604.11 doesn’t cross-reference either.

Why can’t a judge order a malpractice case into mediation?

Because the Legislature wrote a unanimity requirement and the Supreme Court’s rule gave way to it. Subdivision 2 in full:

At the time a trial judge orders a case for trial, the court shall require the parties to discuss and determine whether a form of alternative dispute resolution would be appropriate or likely to resolve some or all of the issues in the case. Alternative dispute resolution may include arbitration, mediation, summary jury trial, or other alternatives suggested by the court or parties, and may be either binding or nonbinding. All parties must agree unanimously before alternative dispute resolution proceeds.

Here’s how it bites, in order.

The discussion is mandatory. The process isn’t. The court “shall require the parties to discuss and determine.” That’s an enforceable duty to confer. What the parties decide is up to them.

The trigger comes late. Subdivision 2 kicks in “[a]t the time a trial judge orders a case for trial.” Rule 114.04(b), by contrast, provides for an ordinary case that “[t]he parties, after service of the complaint, petition, or motion, shall promptly confer regarding selection and timing of the ADR process and selection of a Neutral.” So a malpractice case has no rule-driven early ADR conference. If the parties want one, they set it up themselves.

Any one party can end it. “All parties must agree unanimously.” In a multi-defendant malpractice case (a surgeon, a hospital, an anesthesia group, each with its own counsel and its own carrier), that’s several independent vetoes. One defendant who’d rather try the case kills a mediation everybody else wants.

That cuts against the reflex most litigators have. In a case governed by Rule 114 you can let ADR come to you, because the rule will produce it. In a malpractice case, if you want a mediation, you have to sell it to every party, and you should start selling it long before the case is ordered for trial, because subdivision 2’s own trigger shows up too late to help.

What else is exempt from Rule 114?

Malpractice is the first of seven exceptions, not the only one. Rule 114.01(a) reads, in full:

(a) Applicability to Actions. This rule governs court-annexed Alternative Dispute Resolution (ADR). All civil and family cases are subject to this rule except: (1) As provided in Minnesota Statutes, section 604.11 (medical malpractice); (2) As provided in Family Court Rules 303 and 310; (3) Cases enumerated in Rule 111.01; (4) Cases excluded under Minnesota Statutes, section 484.76; (5) In rare circumstances where the court in its discretion finds ADR to be inappropriate or to operate as a sanction; (6) Where parties have proceeded in good faith to resolve the matter using collaborative law, the court may excuse the parties from using further ADR processes; and (7) Proceedings conducted by a special master appointed under Rule 53 of the Rules of Civil Procedure.

Two of those reach civil cases well outside family court.

Clause (3) picks up the Rule 111.01 list, which excludes from the case-scheduling regime (and so from Rule 114) a set of proceedings that includes eviction actions under Minn. Stat. §§ 504B.281 et seq., probate court proceedings, registration of land titles under chapter 508, election contests under chapter 209, applications to compel or stay arbitration under chapter 572, consumer credit contract actions, and mechanics’ lien actions.

Clause (4) picks up Minn. Stat. § 484.76, and that statute has a flatter prohibition than § 604.11 does. Subdivision 2 closes: “Alternative dispute resolution may not be required in civil commitment matters, or in matters arising under section 144.651, 144.652, 518B.01, or 626.557.” Section 144.651 is the “Health care bill of rights,” § 144.652 the bill-of-rights notice and violation provision, and § 626.557 “Reporting of maltreatment of vulnerable adults”. Those statutes support civil damages claims of exactly the kind discussed in Minnesota nursing home neglect claims. Where § 604.11 permits ADR on unanimous consent, § 484.76, subd. 2 says it “may not be required” at all.

So the accurate statement is narrower than the one you usually hear: a malpractice case can’t be ordered into ADR over any party’s objection, and it belongs to a short list of Minnesota civil proceedings that sit outside Rule 114’s compulsion. It’s the one on that list most likely to turn up in an ordinary personal injury practice.

How many interrogatories do I actually get?

Fewer custom ones than in any other civil case, and the counting rule is harsh. Subdivision 1:

Pursuant to the time limitations set forth in the Minnesota Rules of Civil Procedure, the parties to any medical malpractice action may exchange the uniform interrogatories in subdivision 3 and ten additional nonuniform interrogatories. Any subparagraph of a nonuniform interrogatory will be treated as one nonuniform interrogatory. By stipulation of the parties, or by leave of the court upon a showing of good cause, more than ten additional nonuniform interrogatories may be propounded by a party. In addition, the parties may submit a request for production of documents pursuant to rule 34 of the Minnesota Rules of Civil Procedure.

Compare the general rule. Minn. R. Civ. P. 33.01(a): “No party may serve more than a total of 50 interrogatories upon any other party unless permitted to do so by the court upon motion, notice and a showing of good cause. In computing the total number of interrogatories each subdivision of separate questions shall be counted as an interrogatory.” Rule 33.01 closes with another paragraph that gives you a second way past the limit: “Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 50 in number including all discrete subparts ….”

Two things in that comparison are worth acting on.

Ten, counting subparts, is almost nothing. One well-drafted contention interrogatory with four subparts eats forty percent of the allowance. Draft the ten as ten, not as three with subparts.

You can get more by stipulation. Section 604.11 lets the parties enlarge the number “[b]y stipulation”. No motion, no good-cause showing, no judge. Rule 33.01(a) itself mentions only a court order, though the rule’s closing paragraph contemplates a written stipulation too. Either way, in a case where both sides want more custom discovery, the stipulation belongs in the first discovery conference, not in a later motion.

And one thing the section doesn’t say. Subdivision 1 says the parties “may” use the uniform set plus ten. It doesn’t say the uniform interrogatories are exempt from Rule 33.01(a)’s fifty-interrogatory count, and it doesn’t say the fifty-interrogatory limit is displaced. Read with Rule 33.01’s counting method, the plaintiff’s uniform set alone would blow past fifty. It contains 19 numbered interrogatories carrying 56 lettered subparts between them. Neither text answers how the statute and the rule fit together, and it’s resolved, if at all, by authority not cited here. Stipulate to the discovery plan and you never have to find out.

What’s in the three uniform sets?

Subdivision 3 supplies three complete, ready-to-serve interrogatory sets. Counted by their numbered interrogatories:

• (a) Plaintiff’s interrogatories to defendant — 19. Physician credentials and full CV (No. 1, with thirteen lettered subparts, a through m); professional discipline and license revocation or public limitation (No. 2); medical texts consulted and journals subscribed to (Nos. 3–4); experts and their opinions (Nos. 5–6); insurance, with policies attached and any “reservation of rights or controversy or coverage dispute” disclosed (No. 7); every physician, nurse, or other medical person who treated the patient (No. 8); nursing supervisors, hospital defendants only (No. 9); and, at Nos. 10–19, witnesses, statements, privilege log, photographs and video, comparative fault contentions, surveillance, prior-condition witnesses, affirmative defenses, and records-accuracy contentions.
• (b) Defendant’s interrogatories to plaintiff, personal injury — 15.
• (c) Defendant’s interrogatories to plaintiff, wrongful death — 27. These add the heirs-and-next-of-kin, marital history, dependency, and decedent-earnings questions a wrongful death action requires; the trustee mechanics behind those questions are covered separately in Minnesota’s wrongful death trustee.

Two provisions inside the forms deserve to be pulled out.

Plaintiff’s Interrogatory No. 8 shuts down a records dump. After demanding the identity of every treater, it adds: “In responding to this interrogatory, referring plaintiff’s counsel to medical records will not be deemed to be a sufficient answer as plaintiff’s counsel has reviewed the medical records and is not able to determine the identity of the individuals.” That’s a statutory override, written into a form, of the option Minn. R. Civ. P. 33.03 otherwise gives a responding party to answer by specifying business records. A defendant who answers No. 8 with a bates range hasn’t answered it.

The standard-of-care contention interrogatories use fixed language. Defendant’s personal-injury Nos. 9–10 and wrongful-death Nos. 21–22 ask whether the plaintiff contends the defendant “did not possess that degree of skill and learning which is normally possessed and used by medical professionals in good standing in a similar practice and under like circumstances,” and then require the plaintiff to “[s]pecify in detail each act or omission of defendant which you contend was a departure from the degree of skill and learning normally used by medical professionals in a similar practice and under like circumstances.” That’s an early statement of the negligence theory, binding in practice, served on a statutory form. It’s one of the reasons the expert affidavit and the interrogatory answers have to be built together, not one after the other.

The forms were written in 1992 and have never been amended

The Revisor’s history line for § 604.11 reads, in its entirety: Laws 1992, ch. 549, art. 8, § 2. No amendments in thirty-four years. That has consequences, and one of them is a live trap.

The collateral-source interrogatory is now narrower than the statute it serves. Defendant’s personal-injury Interrogatory No. 8 asks the plaintiff to:

List all amounts that have been paid, contributed, or forfeited by, or on behalf of, you or members of your immediate family for the two-year period immediately before the accrual of this action to secure the right to collateral source benefits that have been made to you or on your behalf.

Now read the provision it was drafted from, Minn. Stat. § 548.251, subd. 2(2), as it reads today:

amounts that have been paid, contributed, or forfeited by, or on behalf of, the plaintiff or members of the plaintiff’s immediate family for the two-year period immediately before the accrual of the action and until judgment is entered to secure the right to a collateral source benefit that the plaintiff is receiving as a result of losses.

The words “and until judgment is entered” are in the statute and aren’t in the form. A defendant who serves the uniform interrogatory word for word is asking for less than the premium offset now reaches, and in a case that took four years to try, materially less. The matching wrongful-death interrogatory, No. 20, has the same gap. How that offset works, and what it’s worth, is in the ten-day paper trial that decides what a Minnesota verdict is worth.

The other 1992 leftovers are less dangerous but worth editing. Interrogatories Nos. 3 and 4 of the plaintiff’s set ask which medical texts a physician “referred to” and which journals the physician “subscribes” to. Those questions were written before point-of-care databases existed, and a defendant can answer them truthfully and uselessly today. And defendant’s personal-injury Interrogatory No. 1 asks the plaintiff to state a Social Security number in a discovery answer. Minn. Gen. R. Prac. 11.01(a) classifies a “complete or partial social security number” as a restricted identifier, and Rule 11.02(a) provides that restricted identifiers “are prohibited in all documents or other records filed with the court except when the restricted identifiers are germane and necessary for the court’s consideration of the issues then before the court.” An interrogatory answer isn’t a filing. Until somebody attaches it to a motion.

And there’s a drafting error in the wrongful-death set that’s survived since 1992. Interrogatory No. 11 asks, “Was the deceased employed at the time of death?” Interrogatory No. 12 then begins: “If the answer to Interrogatory No. 10 is yes, indicate the following: a. The name and address of the deceased’s employer …”. Interrogatory No. 10 is the informed-consent interrogatory. The cross-reference should be to No. 11. Nobody’s fixed it, and a plaintiff answering the form literally can decline to answer No. 12 whenever No. 10 was answered “no.”

What counts as a “medical malpractice action” for purposes of this section?

Section 604.11 doesn’t say. There’s no definitions subdivision, and the phrase “medical malpractice action” appears in subdivision 1 without qualification.

That’s a bigger problem than it looks, because Rule 114.01(a)(1) hangs the entire ADR exemption on it. Whether a claim against a chiropractor, a nurse practitioner, a physical therapist, a dentist, a nursing facility, or a hospital acting through non-physician staff is a “medical malpractice action” under § 604.11 decides whether the court can order that case into ADR at all.

Minnesota’s other malpractice statutes each define their own scope, and they don’t define it the same way. That’s the subject of four years is the easy part of a Minnesota malpractice deadline. Section 604.11 borrows none of those definitions. Whether it takes its meaning from one of them is a question of construction governed by authority not cited here, and it’s worth raising at the scheduling conference, not at the ADR order. Claims arising in long-term care carry the same characterization question and are discussed in Minnesota nursing home neglect claims.

What to do

1. Decide your ADR position at intake, not at the trial-setting conference. Subdivision 2’s trigger is late and its consent requirement is absolute. If you want mediation, you’re negotiating for it, not moving for it.
2. Confirm in writing, early, whether every party will agree. In a multi-defendant case that’s several separate conversations.
3. Stipulate to the discovery plan. Section 604.11 permits enlarging the ten-interrogatory allowance by stipulation alone, and a stipulation also takes care of the unresolved relationship between subdivision 1 and Rule 33.01(a).
4. Draft your ten nonuniform interrogatories as ten flat questions. Subparagraphs each count.
5. Edit the uniform sets before you serve them. Add the “and until judgment is entered” period to the collateral-source interrogatory. Drop or narrow the Social Security number demand. Modernize the texts-and-journals questions.
6. Don’t accept a records citation in answer to plaintiff’s Interrogatory No. 8. The form itself rules that answer out.
7. Build the standard-of-care interrogatory answers alongside the § 145.682 affidavit, not after it. They’re the same theory stated twice, and any inconsistency between them is the first thing an adverse expert will find.

Thirty-four years later

Section 604.11 is what a 1992 malpractice-reform compromise looks like thirty-four years on. The Legislature took the two things litigants fought about most (the cost of interrogatory practice, and whether courts could push malpractice cases toward settlement) and settled both by statute: a fixed form set with a hard cap on custom questions, and an ADR provision that lets any party say no.

The interrogatory half has aged into a curiosity. The forms ask about journal subscriptions and printed medical texts, carry an uncorrected cross-reference error, and one of them now asks for less than the statute it was built to serve.

The ADR half hasn’t aged a day. The lever a judge pulls in the ordinary civil case (order the parties into a non-binding process and let the process do the work) was taken away here and handed to the parties, and it’s stayed there for thirty-four years. Lawyers read § 604.11 for the forms. The forms are the part that stopped mattering.

Madgett Law, LLC handles Minnesota medical malpractice and health care liability claims, including the § 145.682 expert affidavit requirements, discovery under Minn. Stat. § 604.11, and settlement and ADR strategy in cases where the court can’t compel it. If you believe you or a family member was hurt by medical care, send us a message or call 612-470-6529.

Sources: Minn. Stat. § 604.11 (2025), “Medical malpractice cases”. It contains three subdivisions and no others: subd. 1 (“Discovery” — use of the uniform interrogatories “[p]ursuant to the time limitations set forth in the Minnesota Rules of Civil Procedure,” ten additional nonuniform interrogatories, the sentence “Any subparagraph of a nonuniform interrogatory will be treated as one nonuniform interrogatory,” enlargement “[b]y stipulation of the parties, or by leave of the court upon a showing of good cause,” and the preservation of requests for production under rule 34); subd. 2 (“Alternative dispute resolution” — the duty to “discuss and determine” at the time a trial judge orders a case for trial, the list of permitted processes, and “All parties must agree unanimously before alternative dispute resolution proceeds.”); subd. 3 (“Uniform interrogatories” — (a) plaintiff’s interrogatories to defendant, numbered 1 through 19, including No. 1’s thirteen lettered subparts a through m, No. 8’s sentence rejecting a reference to medical records as a sufficient answer, and No. 9 designated “(Hospital defendant only)”; (b) defendant’s interrogatories to plaintiff for personal injury cases, numbered 1 through 15, including No. 1’s demand for a Social Security number, Nos. 7 and 8 on collateral sources, and Nos. 9 and 10 on the standard of care; (c) defendant’s interrogatories to plaintiff for wrongful death cases, numbered 1 through 27, including Nos. 19 and 20 on collateral sources, Nos. 21 and 22 on the standard of care, and the cross-reference in No. 12 to “Interrogatory No. 10”). The word “verdict” does not appear in § 604.11. The section contains no itemized-verdict form, no special-verdict provision, and no trial-procedure provision of any kind. Revisor’s history line for § 604.11, in full: “1992 c 549 art 8 s 2”; the section has never been amended. Minnesota Statutes chapter 604 table of sections (single subject heading “MEDICAL MALPRACTICE,” under which § 604.11 is the only section; §§ 604.05, 604.08, and 604.09 shown as repealed by Laws 1994, ch. 623, art. 5, § 3, and § 604.07 shown as repealed by Laws 1988, ch. 503, § 5). Minn. Stat. § 548.251, subd. 2(2) (2025) (quoted for comparison with the uniform interrogatory; the phrase “and until judgment is entered” appears in the statute). Minn. R. Civ. P. 33.01 (subsection (a)’s 50-interrogatory limit and counting rule, quoted verbatim, and the rule’s closing paragraph permitting service beyond the limit “[w]ithout leave of court or written stipulation”) and 33.03 (option to produce business records). Minn. Gen. R. Prac. 114.01(a), quoted in full above with all seven exception clauses as published, including clause (1), “As provided in Minnesota Statutes, section 604.11 (medical malpractice)”; clause (3), incorporating the fifteen categories listed at Minn. Gen. R. Prac. 111.01(a)–(o); and clause (4), incorporating Minn. Stat. § 484.76, whose subdivision 2 provides that “[a]lternative dispute resolution may not be required in civil commitment matters, or in matters arising under section 144.651, 144.652, 518B.01, or 626.557.” Minn. Gen. R. Prac. 114.04(b) (“If the parties cannot agree on an ADR process, the court shall order the parties to use a non-binding ADR process,” and “[t]he parties, after service of the complaint, petition, or motion, shall promptly confer regarding selection and timing of the ADR process and selection of a Neutral”). Minn. Gen. R. Prac. 11.01(a) (definition of “restricted identifiers”) and 11.02(a) (prohibition on restricted identifiers in documents filed with the court) — all court rules from the Minnesota Office of the Revisor of Statutes’ published court rules. This article cites no case law. Two questions are expressly left to authority not cited here: how § 604.11, subd. 1 fits with the 50-interrogatory limit in Minn. R. Civ. P. 33.01(a), and what claims constitute a “medical malpractice action” for purposes of § 604.11 and therefore of the Rule 114.01(a)(1) exemption. This article makes no claim about the relative frequency with which malpractice cases are tried. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Every case depends on its own facts and on the practices of the assigned judge. No outcome is promised or implied.