*1 1(d) (1996). 237.16, §§ § provisions in Minn.Stat. 300.03-.04 Minn.Stat. subd. This authority regulate § 222.37. We limited Minn.Stat. conclude location of encompass specific provisions chapter telephone city’s more must lines does not specific requirement less prevail provisions that U S encase its over WEST fiber Chapter optic 222. lines in chapters 300 and evi- concrete duet or otherwise right agree liability. intent to legislative dences a abolish to limitation of require municipalities of from franchise DECISION telephone company. city The concedes requirements
that its easement stem its city authority require lacks the U S authority; therefore, franchise our conclusion to obtain WEST a franchise or encase its city require no authority has optic fiber lines duct. concrete The dis- effectively telephone franchise asso- resolves by dismissing trict erred eourt U S WEST’S regarding city’s ciated easement issues complaint for upon failure to a claim state requirements. granted. which relief can express be opinion on the extent of the MPUC’s authori- Municipal Regulation: 2. Encasement ty regulate telephone line construction in of Lines municipal rights-of-way. may The MPUC authorize tele Reversed remanded. phone “prescribe line construction and terms and conditions which construc delivery may
tion or be on.” service carried (1996). 237.16, 1(a)(1) § subd.
Minn.Stat. prefaced by
This statute statement authority purpose MPUC’s is “[f]or the bringing compe fair and about reasonable exchange telephone tition for local services.” ZAGAROS, Appellant, Kathleen K. Id., 1(a) (1996).4 subd. district v. preface concluded this was intended to authority recognize limit the MPUC’s and to ERICKSON, Respondent, Beth M. regulate cities more than the loca telephone lines and facilities. We CUTLER, Respondent. disagree Charles M. with that conclusion. authority With the transfer over tele- No. C0-96-1454. phone companies to the state commission in of Appeals Court of Minnesota. legislature virtually stripped [t]he munici- Feb. 1997. palities power telephone to control Review Denied 1997. companies, and vested control of all tele- phone lines in state railroad and ware-
house commission.
Hanft, supra, legislature at 498. The autho-
rized a municipality only to retain powers regulation same which it possesses
now to the loca- reference wires, poles,
tion of equipment other on, below, streets, facilities or above the
alleys, public grounds or other as to so
prevent any interference with safe streets, alleys,
convenient use and other
public grounds by public. Previously, 237.16, authority uniformity practice.” the MPUC’s under this Miim.Stat. purpose (1994). section bringing ”[f]or about subd. 1 *2 Appellant
M. Erickson. contends: medical malpractice limitations for negligent misdiagnosis does not bar her against claim Erickson or her claims arising allegedly negligent per- *3 custody study; formance of a witness immunity protect does not Erickson from liability allegedly negligent for rendering in- testimony; judicial does not Cutler from in his capacity evaluator in as a dissolu- proceeding. tion affirm.
FACTS Erickson January appellant On Kathleen Zagaros K. Anthony and her husband Stael began marriage counseling respondent with Erickson, Beth M. psy- a Minnesota-licensed chologist. Zagaros met with Erickson for times, counseling eight five sessions with Sta- individually. el and Zagaros’s three sessions last session April with Erickson was on Thereafter, Stael continued individual counseling with Erickson. initially diagnosed
Erickson Zagaros with depression, April but diag- she Zagaros suffering nosed with borderline (BPD). personality disorder She did not in- form diagnosis BPD or rec- any ommend treatment. Erickson did not record diagnosis either her or the basis for it Baab, Croke, Carole Lofness Teresa M. files, may her clinical but Erickson have P.A., Condon, Minneapolis, Johnson & for diagnosis computerized entered the into her Respondent Beth M. Erickson. records used to bill insurance carriers. Hart, Rodger William Hagen, M. A. 17-20, One week before November Meagher Geer, P.L.L.P., Minneapolis, & hearing, dissolution Erickson informed Respondent Charles M. Cutler. diagnosed Zagaros Stael that she had with BPD. Stael then primary decided seek Marcy Wallace, Reed, S. Charlotte M. St. physical custody joint legal instead Paul, Appellant. physical custody had been seeking prior he learning diagnosis. the BPD SHORT, P.J., Considered and decided did not diagnosis learn of BPD through DAVIES, and RANDALL and JJ. discovery, because had not record- ed the in her records. OPINION Erickson testified that suffered RANDALL, Judge. from BPD and that those who suffer from Zagaros, plaintiff Kathleen K. in a medical BPD difficulty establishing have relation- malpractice action, appeals from ships. they the district may She testified that exhibit grant court’s summary judgment persistent anger favor and consistent be- of psychologists M. Further, Charles Cutler and come terrifying Beth to a child. retainer, danger paid to lack of Zagaros’s child was in due he retainer. testified that suffering fre- completed from BPD his parents report and recom- Cutler children, physically both quently joint custody. abuse mended emotionally. BPD not resolve with- does attorney wrote to on Cutler plan, therapeutic prognosis but out 28, 1992, directing complete him not to markedly long-term psycho- improves report and not to disclose diagno- therapy. on BPD Based the severe regarding study information Stael sis, be recommended Steal attorney. subsequently his Cutler received custody. physical awarded subpoena deposi- notice of duces tecum and ordering appearance deposition on proceed- commenced dissolution *4 September subpoena 1992. The directed in against Anthony ings her husband Stael relating bring to all documents to the Cutler not April, Custody was resolved custody receiving After evaluation. the sub- Zagaros decid- through Stael and mediation. Zagaros a from poena, Cutler received letter evaluation, custody independent ed on an 8, 1992, September requesting him dated not having done the evaluation rather than study to release records of the as- his and through County Za- Dakota Court Services. serting prior revoked all authoriza- she Cutler, garos respondent Charles M. selected Zagaros quash attempt tions. did not to the psychologist a a Minnesota-licensed with subpoena. appeared deposition the Cutler psychology, agreed in and Ph.D. clinical Stael custody provided report and his and other cooperate. Zagaros and entered Cutler deposition, At related documents. the Cutler rate agreement an at Cutler’s usual into oral Zagaros for the first time that had learned Zagaros begin paid and a retainer to Cutler complaint filed a with the State Board of study. the him, criticizing Psychology against proto- his weeks, custody evaluation lasted six procedure performing custody the col and 10,1991. 29,1991, December from October evaluation. place took at Cutler’s Evaluative sessions Zagaros for the individual paid office and testify at the dissolu- Stael called Cutler met three times with sessions. Cutler hearing custody evaluator. Cutler as child, parent with and one two times each Zagaros suffered from some testified joint the child and Stael. Cutler session with difficulties, stating: “Clearly in personality any psychological treat- did not undertake my mind is trouble there.” He was there study. perform a ment and did not home unsure, however, diagnosis that the was Cutler, in Zagaros performing believed joint as BPD. Cutler severe recommended study, custody for the child’s best worked custody legal physical and and stated that he bills, Although paid interests. joint custodian if preferred Stael as sole by both he retained Cutler believed had been court, custody was The trial not feasible. conducting a parents purpose for the sole testimony of adopting much of the neutral, independent evaluation. Stael, marriage dissolved and ordered understanding he conformance with legal physical and awarded sole and provide therapy, hired Cut- had been Zagaros filed motion amend- to Stael. Zagaros’s request psycho- for a ler refused or, in the findings conclusions alterna- ed and in- and logical diagnosis of herself Stael tive, a new The trial court denied trial. purposes. surance affirmed. motions this court evaluation, he completed After Cutler of Erickson’s remained unaware ready parties informed that he was both through hearing until BPD in- He offer recommendation. testimony. Rodger trial Dr. C. Erickson’s Zagaros that a retain- formed he would need M.D., Ph.D., J.D., performed a Kollmorgen, report. did not send er write evaluation of psychological psychiatric and out Stael found Cutler the retainer. When 4, 1994, concluded that Zagaros April on mid-January February or sometime around does not from BPD. report not been written suffer 1992 that had against ordinarily single then initiated this action does not consist act easily determined, precise November and Erickson with on an time occurrence), (Minn. asserting Aug. review denied on November 1992). seeking claims and to recover for the termination treatment Under distress, rule, attorney related to factors emotional fees three must be considered (1) dissolution, support pay- determining and her child treatment ceased: Following summary judgment relationship hear- there ments. whether between granted patient ings, physician regard the trial court Cutler’s and to the summary judgment injury particular malady physi motions Erickson’s (2) 8,1996. cure; employed order dated cian was whether physician continued to attend examine thereto; patient ISSUES relation something there was whether more to be 1. Does the medical Esser, done to effect cure. Schmit v. of limitations bar claims 358-59, 236 N.W. and Cutler? (explaining that termination of treatment privilege testimonial Er- 2. Does necessarily depend does not on termi ickson based on her physician nation of the entire relation of during proceedings? the dissolution *5 patient; particular treatment for a ailment or judicial immunity 3. Does the doctrine of injury might terminate relation and the of appointed by evaluators not continue). physician patient and the court? underlying rationale the termi ANALYSIS nation of treatment foster rule is to the summary judgment patient’s A motion for shall be on physician during reliance the the granted pleadings, depositions, when the an course of curative treatment the interrogatories, relationship physi swers and admissions on trust patient between and file, affidavits, any, if together patient’s with the show cian the ability inhibits to discover genuine is no that there issue of material fact of constituting acts omission or commission Haberle, party judg malpractice. and that either is entitled to a 480 at 355. N.W.2d ment a matter underlying of law. Minn.R.Civ.P. termination Concerns the of appeal, reviewing 56.03. On the court views present specif treatment rule are not awhen light the specif evidence the most favorable to ic of treatment course terminates at a against summary judgment party point the whom ic in time subsequent and all treatment granted accepts factual independent as true alle is of alleged malpractice the gations by appellant. negligent. made Fabio v. in way “single Bello Id. such act mo, (Minn.1993). 758, cases, 504 exception” two-year 761 the of limi statute begins
tations to run at the time of the I. negligent act not at the of all termination treatment. Id. at (noting 355-56 the Statute of Limitations for Medical Mal- single exception applies, only act not to con practice moment, duct that starts ends in a but An malpractice action for medical is also to a course of termi barred not within commenced two time). specific point nates at a years of the date on of which the cause action (1996); § accrues. Minn.Stat. 541.01 Minn. Against A. Claims 541.07(1) (1996). Stat. of The cause action generally par accrues when treatment a Zagaros claims her cause action Fabio, ticular condition ceases. 504 N.W.2d Erickson for misdiagnosis of BPD 762; Buchwald, at Haberle v. 480 N.W.2d accrued when Erickson testified that 351, (Minn.App.1992) (explaining 19, 354-55 1992, from BPD suffered on November practical a reason for the of during termination dissolution hearing, than two less treatment years rule is that actionable treatment before commencement of action.
521
prior
any injury
brought
so
could be
claims no action
She
damaged
action
accrue
would
when termination
she was not
that time because
treatment ceased.
testified.
misdiagnosis until Erickson
arising
Zagaros’s claims
Erickson contends
duty
psychologist
diag
A
has
by the
negligent diagnosis are barred
properly
apply
nose mental disease
limitations be-
proper
Ni
treatment. See Thorkeldson v.
years
two
ceased more than
cause treatment
cholson,
145 Minn.
175 N.W.
action. We
before commencement
(1920) (physicians
duty
1009
have a
to make
agree.
undisputed
It is
Erickson terminated
Minn,
Schmit,
proper diagnosis);
at
on
treatment
(negligent
at 625
236 N.W.
failure
day
they completely
That
terminated
injury needing
treat an
treatment amounts to
relationship.
physician
patient
treatment).
negligent
At least nominal dam
ages
legal rights
are inferred when the
of a
Generally,
negligent
phy
conduct
patient
psychologist’s
violated
are
causes
immediate dam
sician
at least some
Chase,
duty.
breach of
See Larson
patient,
of limita
age to the
but
310-11,
50 N.W.
tions, nonetheless,
running at
commences
(Whenever
legal
treatment,
right
is
“invasion
course of
some
termination of the
established,
damage,
law
infers some
damage
initial
occurs.
time
See
after
Minn,
and,
given
particular
if
no evidence
Schmit,
N.W. at 625
loss,
right by
amount of
declares
(adopting
treatment rule
the termination of
awarding
damages.”)
nominal
despite
general
rule that a statute of
run at
begins
action in tort
limitations
Zagaros actually
suf
Whether
act
negligent
time of the
which coincides with
BPD,
fered
as severe as
disorder
injury). Zagaros
termination
claims the
apparently recognized symptoms
*6
inapplicable
her case
of treatment rule is
significant
that
mental
she believed raised
damage
coincided with
immediate
because
that
health
Erickson testified
concerns.
misdiagnosis.
allegedly negligent
Erickson’s
difficulty
those
suffer from BPD have
who
Hosp., 460
Peterson v. St. Cloud
See
establishing relationships
may
exhibit
(holding that
(Minn.App.1990)
addition,
persistent
anger.
and consistent
damages
of
when a
occurrence
determines
believed,
diagnosis,
BPD
based on the
accrues).
malpractice action
She ar
medical
danger
Zagaros’s
physi
that
child was in
of
injured by any
gues
not
lack of
she was
not
cal or
abuse.
did
emotional
or
BPD
treatment
non-communication
expect Zagaros
improve
without a thera
had BPD.
because she never
We
peutic
progno
plan and she understood
persuaded.
damages
are not
We conclude
markedly
improves
sis for BPD sufferers
inform
Erickson failed to
Za-
occurred when
Although
long-term psychotherapy.
with
diagnosis and
garos of the BPD
failed
BPD,
testimony
diagnose
not
Cutler did
in accordance
proper treatment
recommend
Zagaros suf
concern that
reflected a similar
symptoms.
Zagaros’s
with
can
personality difficulties. We
fered from
patient
a
bring
not
to inform
recognize Zagaros
unable to
infer
failure
was
We
not
learning
a
concern would
harm
against Erickson
such
serious
a claim
before
Minnesota,
way
enough
patient,
But
at least
a small
diagnosis.
BPD
action, if
one.
malpractice
trigger
cause of
there is
a
of limitations
medical
injured
sufficiency of Erickson’s
Regardless of the
a
of action
bar
cause
before
accuracy of her ultimate
suffering
methodology or the
they
damages
are
party discovers
infer,
conclusion,
our
diagnostic
part
by
we
negligent medical conduct. See
caused
nominally
analysis,
at least
was
Winthrop
Sterling
Lab. Div.
Johnson
relating
Inc.,
injured
important information
Drug,
190 N.W.2d
rule).
(1971)
safety
of her
(rejecting
discovery
to her mental health and
appropriate
allegations
child
not communicated and
Accepting
as true
factual
was
psy
a
not recommended. Where
by
must
treatment
Zagaros,
made
we
determine wheth-
chologist
serious
diagnoses
patient
coincide with
er Erickson’s conduct would
requiring
negligence
arising
mental
treatment and the
claims
disorder
from Cut-
to communicate that infor-
psychologist
performance
fails
ler’s
study
fall
appropriate
(1)
recommend
single
exception
mation or to
treat-
under the
act
if:
all
ment,
damages,
nominal
at least
sufficient to
negligence
acts of
prior
identifiable
occurred
action,
cause of
will be inferred.
time;
accrue the
point
to an
identifiable
all subse-
Thus,
cause of
Zagaros’s
action
medical
quent
independent
treatment was
of the al-
malpractice
Erickson’s
arose before
testimo-
leged
way
malpractice and in no
had the
by
ny
applicable
statute of
is barred
concealing any prior
effect of
defective treat-
limitations.
injury
it;
any
arising
ment or
plaintiff
knew or should have known the
Zagaros claims the statute of limita
upon
facts
which her claim could be based.
by
tions was tolled
Erickson’s fraudulent
Haberle,
523 Zagaros recognizes any liability improperly that for Erickson malpractice because diagnostic allegedly the limi false conclu- the district court of Erickson’s to advise failed methodology, procedures, prevented sion is under doctrine of on her tations immunity charges immuni contends that witness witness for founded on opinions. She Rather, Zagaros from civil liabili defamation. claims the ty does not negligence at trial. Erickson the failure of Er- ty on her actionable based protected against point negligence is liabili ickson out own contends that she to her testimony, Zagaros’s forming testifying. By ty based on her because agree. reframing separating the issue method- claim sounds in defamation. We ology by- clear that a trial witness attempts law is from result to Minnesota pass immunity defamation based on the not be sued for witness defamation. We testimony. Zagaros’s v. Kenne cause of witness’s trial Matthis conclude action 224, 413, negligent testimony methodology 417 dy, 243 Minn. 67 N.W.2d related (1954). allegedly defamatory and the conclusion Zaga- are so causes intertwined as the immunity doctrine of witness unfair, alleged ros’s harm it would be immunity participants judi total grants probably impossible, expect jury defamatory proceeding for false and cial distinguish two. between the regardless of the nature or intent statements protected by Erickson is witness Dirkswager, speaker. Johnson v. of the (Minn.1982). Zagaros’s essentially because claim is rela 215, 220 Under the N.W.2d beling v. Rar a defamation claim. See Wild privilege there is for utterances to, ig, 302 with, 234 N.W.2d have relation con reference (1975) (holding plaintiffs in def suit sounded subject matter of the action. nection Minn, Matthis, “regardless amation because what the suit at 67 N.W.2d labeled, thing done to dam of a defamation claim are as The elements (1) age [plaintiff] eventually stems to someone other follows: communication defamation”). (2) grew falsity utterance; out of the plaintiff; than (3) plain to lower utterance tends reputation plaintiff and to in the tiffs lower III. Parke, community. Stuempges v. eyes of the Immunity Judicial (Minn. Co.,& Davis 1980). asks court to this extend judicial immunity encompass
Erickson contends that claim doctrine appoint as- evaluators without sounds defamation (1) ment, claiming pro it is that a fundamental serts: Erickson’s conclusion untrue; ability have the to relate from BPD is fessional suffers through opinions in cases such as knowledge her published the untrue declaration proceeding without fear of testimony; loss of this dissolution *8 she suffered possible litigation upon their testimo reputational damages resulting from based ny. argues negli- doctrine publication. insists judicial immunity to should not be extended gence claim asserts is not based on the custody ap defamatory evaluators without court conclusion that she suffers from founded professional pointment from BPD but rather on Erickson’s production of forming la- documents. malpractice in judicial im formally diagnosis. Specifical- We decline to extend testifying ter to Erickson, custody court contrary munity to evaluators without ly, Zagaros alleges that to appointment. That is not needed express applicable to all extension rules Minnesota to trial for our decision. do understand psychologists, failed advise the court now, the proce- logie argument. For methodology, her of Cutler’s of the limitations on judicial immunity protects those dures, opinions in accordance with doctrine of perform court Psychology appointed who Board of Rule are Minnesota State 7200.500, judicial quasi-judicial functions. See Dzi or Subpt. 3. Mott,
ubak v. 775-76 that the father deferred the selection (Minn.1998) judicial (extending immunity by appellant Zagaros). made In this fact public defenders, situation, malpractice suits to Cutler comes to court with the privately judicial though retained same enjoy defense that he would counsel). had appointed directly. the district court him
Further, yet recognized Minnesota has not alleging
medical causes of action fiduciary duty.
tortious breach See
Stubbs,
(declining
recog-
nize a of action for tortious breach of physician-client relationship). previ- Our analysis
ous limitations for obviates a need to for- DAKOTA FIRE INSURANCE mally decide other issues. COMPANY, Respondent, necessary If a district court finds Family American Insurance opinion obtain the evaluator to Group, Respondent, decide issues where is con tested, statutory authority courts have order reports. evaluations and See Minn. HARTFORD FIRE INSURANCE (1996) (“In 518.167, Stat. subd. contested COMPANY, Appellant. * * * custody proceedings the court No. C6-96-1264. investigation report order an concerning child.”). arrangements custodial for the The Appeals Court of of Minnesota. statute does not limit the court to selecting county agency department welfare Feb. county Hennepin services. See Doe v. Coun (D.Minn. ty, F.Supp.
1985) (allowing parents private psy to select
chologists court-approved from a psy list
chologists appointment). for later court
district apparently this case did not investigation
order an report and did not authority appoint
exercise its Cutler. precise
This extending issue of absolute
judicial immunity to evaluators who are not
court appointed will need to be looked at
down the road.
DECISION grant summary judgment in favor respondent is affirmed.
Affirmed.
DAVIES, Judge (concurring specially).
I separately write because I would reach judicial issue of respondent
Charles M. Cutler. my view, the district effect
delegated selection of the evaluator parties,
to the request. parties jointly
then chose (notwithstanding