Anita J. Howard v. Shelly R. Svoboda, M.D. , 877 N.W.2d 562 ( 2016 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0896
Anita J. Howard,
Respondent,
vs.
Shelly R. Svoboda, M.D., et al.,
Appellants.
Filed March 7, 2016
Reversed
Reyes, Judge
Hennepin County District Court
File No. 27CV1420381
Richard E. Bosse, Law Office of Richard E. Bosse, Chtd., Henning, Minnesota (for
respondent)
Paul C. Peterson, William L. Davidson, Amber N. Garry, João C. Medeiros, Lind, Jensen,
Sullivan & Peterson, P.A., Minneapolis, Minnesota (for appellants)
Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Klaphake,
Judge.
SYLLABUS
Under Minn. Stat. § 595.02, subd. 5 (2014), an “informal discussion” with a
treating physician who has examined or cared for a party allows inquiry into “any
information or opinion” the physician possesses, including opinions on the standard of
care and causation relating to periods when the physician was not caring for the patient.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
OPINION
REYES, Judge
This appeal arises out of a medical-malpractice suit and a district court protective
order limiting the scope of an “informal discussion” with a treating physician authorized
under Minn. Stat. § 595.02, subd. 5. Appellants challenge the order, arguing that the
district court erred in interpreting the statute to prevent them from asking about “any
information or opinion” of a surgeon who examined and cared for respondent, including
opinions he possesses on the standard of care and causation relating to periods when he
was not caring for respondent. Because we agree with appellants, we reverse the district
court’s protective order.
FACTS
In 2009, following a motor-vehicle accident and a history of back pain, respondent
Anita Howard sought treatment from appellants Dr. Shelly Svoboda and her physician
assistant, Christopher Geisler. Appellants ultimately referred respondent to neurological
surgeon Dr. Mahmoud Nagib when her back pain would not subside. Dr. Nagib
performed back surgery on respondent in August 2009 and treated her until October
2009, when he referred her back to appellants for postoperative care. Following the back
surgery, appellants treated respondent from late 2009 through 2010.
In June 2010, respondent awoke unable to move her legs. She went to the
emergency room where “a collapse of the T5 and T6” vertebrae causing her complete
paraplegia was identified. While she was at the hospital, Dr. Nagib once again examined
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her. He concluded that the collapse occurred due to an infection and determined that
surgery to correct the paraplegia was too risky.
In 2014, respondent sued appellants, alleging that they failed to diagnose and treat
the infection that resulted in her paraplegia. Appellants requested respondent’s
authorization for an “informal discussion”1 with Dr. Nagib pursuant to Minn. Stat.
§ 595.02, subd. 5. Initially, respondent provided a signed authorization. However, a
week before the scheduled discussion, respondent wrote to appellants stating that she
would “take issue” with any questions “as to standard of care or causation.” Appellants
responded the next day stating that they disagreed with this limitation, and, shortly
thereafter, respondent revoked her earlier authorization.
The parties submitted cross-motions to the district court. Respondent moved for a
temporary injunction and/or a protective order to limit the scope of the informal
discussion, and appellants moved to compel respondent to sign an authorization to allow
the informal discussion. The district court held a hearing and, by order dated April 30,
2015, granted both motions in part. The district court directed respondent to sign an
authorization.2 But the district court granted a protective order to preclude appellants
from using the informal conference under Minn. Stat. § 595.02,
subd. 5, to request expert opinions by Dr. Nagib about (a) the
standard of care applicable to other medical providers who
cared for [respondent] during periods of time when
[respondent] was not Dr. Nagib’s patient or (b) whether an
alleged breach of the standard of care by medical providers
other than Dr. Nagib caused injury to [respondent].
1
An informal discussion is also commonly referred to in practice as an “informal
conference.”
2
Respondent does not challenge this ruling by the district court on appeal.
3
This appeal follows.
ISSUE
Did the district court abuse its discretion when it issued a protective order
preventing appellants from using the informal discussion pursuant to Minn. Stat. §
595.02, subd. 5, to ask Dr. Nagib about any opinions he possessed on the standard of care
and causation relating to periods when he was not examining or caring for respondent?
ANALYSIS
Appellants contend that the district court erred in interpreting Minn. Stat.
§ 595.02, subd. 5, to prevent them from asking about “any information or opinion” of
Dr. Nagib, including opinions he possesses on the standard of care and causation relating
to periods when he was not treating respondent. Respondent contends that the district
court did not err because “[t]he plain, unambiguous language of the statute, taken in
context describes only information or opinions the doctor has acquired in attending the
patient in a professional capacity and which was necessary to enable the professional to
act in that capacity” and “[a]ny opinion outside his care is irrelevant.” (Emphasis
omitted). We agree with appellants.
A district court has broad discretion under Minn. R. Civ. P. 26.03 “to fashion
protective orders and to order discovery only on specified terms and conditions.”
Erickson v. MacArthur, 414 N.W.2d 406, 409 (Minn. 1987). Appellate courts “review a
district court’s order for an abuse of discretion by determining whether the district court
made findings unsupported by the evidence or by improperly applying the law.” In re
Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007).
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Statutory interpretation is a question of law subject to de novo review. State v.
Riggs, 865 N.W.2d 679, 682 (Minn. 2015). “The objective of statutory interpretation is
to ascertain and effectuate the [l]egislature’s intent. If the [l]egislature’s intent is clear
from the statute’s plain and unambiguous language, then we interpret the statute
according to its plain meaning without resorting to the canons of statutory construction.”
State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013) (citations omitted); see Minn. Stat.
§ 645.16 (2014). But if the language of the statute “is susceptible to more than one
reasonable interpretation, then the statute is ambiguous and we may consider the canons
of statutory construction to ascertain its meaning.” Id.
Minn. Stat. § 595.02, subd. 1(d) (2014) defines the scope of the physician-patient
privilege in Minnesota. The statute, in relevant part, states:
A licensed physician or surgeon . . . shall not, without the
consent of the patient, be allowed to disclose any information
or any opinion based thereon which the professional acquired
in attending the patient in a professional capacity, and which
was necessary to enable the professional to act in that capacity.
Minn. Stat. § 595.02, subd. 1(d). This privilege belongs to the patient and may be waived
only by the patient. Maas v. Laursen, 219 Minn. 461, 463, 18 N.W.2d 233, 234 (1945).
If a party voluntarily places his or her medical condition at issue, such as by initiating a
medical-malpractice suit as was done here, the privilege is waived. Minn. R. Civ. P.
35.03.
In 1986, the Minnesota Legislature added subdivision 5 to Minn. Stat. § 595.02 to
allow defendants in medical-malpractice suits an opportunity to conduct informal
discussions with plaintiffs’ treating physicians. See Blohm v. Minneapolis Urological
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Surgeons, P.A., 449 N.W.2d 168, 169 (Minn. 1989). This subdivision, in relevant part,
states:
A party who commences an action for malpractice . . . against
a health care provider3 on the person’s own behalf . . . waives
in that action any privilege existing under subdivision [1(d)],
as to any information or opinion in the possession of a health
care provider who has examined or cared for the party . . . .
This waiver must permit all parties to the action, and their
attorneys . . . to informally discuss the information or opinion
with the health care provider if the provider consents. . . .
Appropriate medical authorizations permitting discussion must
be provided by the party commencing the action upon request
from any other party.
Minn. Stat. § 595.02, subd. 5 (emphasis added). The purpose of this addition is “to give
defense counsel easier access to plaintiff’s treating physicians” and “to minimize the
difficulties of obtaining an interview by eliminating plaintiff’s right to veto.” Blohm, 449
N.W.2d at 169-70. The Minnesota Supreme Court has held that these discussions are not
discovery. Id. at 171.
Both parties contend that Minn. Stat. § 595.02, subd. 5, is unambiguous. Although
they present different interpretations of the statute, we discern no ambiguity. The plain
language of Minn. Stat. § 595.02, subd. 5, waives the patient-physician privilege created
in subdivision 1(d) as to “any information or opinion in the possession of a health care
provider who has examined or cared for the party” and allows “the information or
opinion” to be “informally discuss[ed]” with any party to the action. (Emphasis added).
3
“‘Health care provider’ means a physician, surgeon, dentist, or other health care
professional or hospital.” Minn. Stat. § 595.02, subd. 5. The supreme court has used this
term synonymously with “treating physician.” See Blohm, 449 N.W.2d at 169.
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“Possession” is defined as “the state of having or owning something.” Pocket Oxford
American Dictionary 638 (2d ed. 2008) (emphasis added). Further, the statute allows
“any information or opinion” a treating physician possesses or has to be discussed. Minn.
Stat. § 595.02, subd. 5 (emphasis added). And notably, the statute contains no temporal
limitation as to the time period to which the opinion must relate. Id. Therefore, we hold
that, if a treating physician who has examined or cared for a party possesses an opinion,
including one on the standard of care and causation relating to periods when the
physician was not caring for the party, inquiry into the opinion is allowed at the informal
discussion under Minn. Stat. § 595.02, subd. 5.
In its protective order interpreting Minn. Stat. § 595.02, subd. 5, the district court
stated that an informal discussion “does not extend to asking a treating physician to form
and disclose opinions critiquing the medical care provided by other medical providers
during time periods when the treating physician was not caring for the [patient].”
(Emphasis added). It explained that “[s]uch inquiries do not pertain to the information
and opinions gained or formed by the treating physician during the treating relationship”
and, “[i]nstead, they seek information and opinions formed outside of the treating
relationship.” The court concluded by stating that “[s]uch opinions would more properly
fall with[in] the scope of [Minn. R. Civ. P.] 26.02(e), which governs the discovery and
presentation of evidence of expert opinions acquired or developed in anticipation of
litigation or for trial.”
We agree with the district court that Minn. Stat. § 595.02, subd. 5, does not allow
parties to use an informal discussion to ask a treating physician to form an opinion at the
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time of the discussion. But we conclude that the statute allows a party to ask a treating
physician about an opinion the physician already possesses. Here, Dr. Nagib concluded
that the fracture occurred due to an infection. If he possesses any opinions on the
standard of care or causation, then appellants are entitled to inquire about those opinions.
See Minn. Stat. § 595.02, subd. 5. Therefore, the district court abused its discretion by
issuing a protective order preventing appellants from asking Dr. Nagib about opinions he
possesses regarding the standard of care and causation relating to periods when he was
not caring for respondent.
Respondent argues, and the district court agreed, that allowing these types of
questions to be asked of treating physicians is detrimental to the patient-physician
relationship because it essentially turns them into “Rule 26” experts adverse to their own
patients. We are not persuaded. Informal discussions are not discovery. Blohm, 449
N.W.2d at 171. Therefore, the information obtained during the discussions is not
admissible at trial. See Minn. R. Civ. P. 26. In addition, Minn. Stat. § 595.02, subd. 5,
allows inquiry of any opinion a treating physician possesses. But nothing in the statue
requires a treating physician to form an opinion. Minn. Stat. § 595.02, subd. 5.
Moreover, Minn. Stat. § 595.02, subd. 5, mandates that “[t]he plaintiff’s attorney . . .
have the opportunity to be present at any informal discussion,” ensuring that the patient’s
interests are protected and that all parties have access to the information disclosed. Cf.
Wenninger v. Muesing, 307 Minn. 405, 411, 240 N.W.2d 333, 337 (1976) (stating that
“[t]he presence of the patient’s counsel at the doctor’s interrogation permits the patient to
know what his doctor’s testimony is, allays a patient’s fears that his doctor may be
8
disclosing personal confidences, and thus helps preserve the complete trust between
doctor and patient”), superseded by statute on other grounds, Minn. Stat. § 595.02, subd.
5.
Respondent also challenges the constitutionality of Minn. Stat. § 595.02, subd. 5,
by arguing that the subdivision is a “usurpation of the rule making powers of the
judiciary by the legislature.” We disagree. “Minnesota statutes are presumed
constitutional, and our power to declare a statute unconstitutional is exercised with
extreme caution and only when absolutely necessary. We review the constitutionality of
a statute de novo.” State v. Lemmer, 736 N.W.2d 650, 657 (Minn. 2007).
“When determining whether a statute impermissibly infringes on a judicial
function, we examine the nature of the statute. The judicial branch governs procedural
matters, while the creation of substantive law is a legislative function.” Id. A statute “is
procedural when it neither creates a new cause of action nor deprives defendant of any
defense on the merits[.] . . . [E]videntiary matters and matters of trial and appellate
procedure are procedural rules governed by the judicial branch.” Id. (quotation omitted).
Substantive statutes “are those that create, define, and regulate rights.” Id.
The physician-patient privilege is a statutory creation. State v. Enebak, 272
N.W.2d 27, 30 (Minn. 1978); see Minn. Stat. § 595.02, subd. 1(d). “The legislature
which created the rule also possesses the power to create exceptions to the rule.” Enebak,
272 N.W.2d at 30. Respondent does not challenge the constitutionality of the underlying
privilege, which was created by the legislature. See id. Because the informal discussion
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authorized under subdivision 5 limits the statutorily created physician-patient privilege, it
is constitutional. See Minn. Stat. § 595.02, subds. 1(d), 5; Enebak, 272 N.W.2d at 30.
DECISION
Because an “informal discussion” with a treating physician who has examined or
cared for a party authorized under Minn. Stat. § 595.02, subd. 5, allows inquiry into “any
information or opinion” the physician possesses, including opinions on the standard of
care and causation relating to periods when the physician was not caring for the patient,
the district court abused its discretion by issuing a protective order preventing appellants
from asking Dr. Nagib about any opinions he may possess.
Reversed.
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