This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-570

 

Rhonda Kostrzewski,

Appellant,

 

vs.

 

Dhanalal Krishnanaik, M.D.,

Respondent,

North Valley Health Center,

Respondent,

Eric Johnson, M.D.,

Respondent.

 

Filed December 5, 2000

Affirmed
Mulally, Judge
*

 

Carlton County District Court
File No. C699848

 

Shirley A. Dvorak, Moosbrugger, Dvorak & Carter, P.L.L.P., 311 South Fourth Street, Suite 101, Grand Forks, ND 58201 (for appellant)

 

Wayne M. Carlson, Vogel, Weir, Hunke & McCormick, Ltd., 502 First Avenue North, P.O. Box 1389, Fargo, ND 58107-1389 (for respondent Dhanalal Krishnanaik)

 

Jack G. Marcil, Timothy G. Richard, Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Ten Roberts Street, P.O. Box 6017, Fargo, ND 58108 (for respondent North Valley Health Center)

 

Randall S. Hanson, Patrick J. Maddock, Camrud, Maddock, Olson & Larson, Ltd., 401 DeMers Avenue, Suite 500, P.O. Box 5849, Grand Forks, ND 58206 (for respondent Eric Johnson)

 

            Considered and decided by Stoneburner, Presiding Judge, Foley, Judge,** and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N

 

MULALLY, Judge

 

            Appellant challenges the district court’s dismissal of her medical malpractice action contending that the two-year statute of limitations under Minn. Stat. § 541.07 did not begin to run until her permanent injury manifested itself.  Furthermore, appellant argues that the legislature intended that the four-year statute of limitations under Minn. Stat. § 541.076 be applied retroactively.  Next, appellant contends that she should be able to maintain her cause of action against the medical center even if the allegedly negligent doctor was not served within the applicable statute of limitations.  Finally, appellant argues that the district court improperly dismissed her claims against a North Dakota physician for lack of personal jurisdiction.  We affirm.

FACTS

When appellant Rhonda Kostrzewski lacerated the little finger of her right hand on a piece of glass on July 10, 1997, she went to the emergency room of respondent North Valley Health Center (North Valley) located in Warren, Minnesota and was treated by respondent Dr. Dhanalal Krishnanaik.   She was treated again by Dr. Krishnanaik on July 11, 1997, and returned on July 15, 1997, to have the dressing on her wound changed by him.  Dr. Krishnanaik advised her to return on July 18, 1997, to have her sutures removed.  However, Kostrzewski, on the advice of her HMO, instead went to the Altru Clinic in Grand Forks, North Dakota, and had the sutures removed.  Her hand was placed in a splint by respondent Dr. Eric Johnson.  Dr. Krishnanaik had no further contact with Kostrzewski except for a telephone call which he made on July 24, 1997, inquiring about her failure to appear for removal of the sutures.

On August 24, 1997, Kostrzewski telephoned Dr. Johnson complaining of stiffness in her finger and requesting a referral to an orthopedic specialist.  Kostrzewski was seen by Dr. Johnson on September 10, 1997, at which time he referred her to another physician.   Kostrzewski has permanently lost mobility in her little finger due to an untreated tendon injury.

Kostrzewski’s first complaint, filed in federal court, was dismissed without prejudice on August 24, 1999.  Kostrzewski then filed her state claims against Dr. Krishnanaik on July 30, 1999, North Valley on August 2, 1999, and Dr. Johnson on August 3, 1999.  Respondent Dr. Krishnanaik and North Valley moved for summary judgment, arguing that Kostrzewski’s claims were barred by the statute of limitations.  Dr. Johnson moved to dismiss for lack of personal jurisdiction.  Kostrzewski filed a motion to voluntarily dismiss the claim against Dr. Krishnanaik without prejudice.  However, the district court dismissed the claims against Dr. Krishnanaik and North Valley with prejudice as time-barred and dismissed the claim against Dr. Johnson without prejudice for lack of personal jurisdiction.  On appeal, Kostrzewski challenges the district court’s grant of summary judgment in favor of respondents Dr. Krishnanaik and North Valley.  She also challenges the district court’s grant of Dr. Johnson’s motion for dismissal and its denial of her own motion for voluntary dismissal without prejudice of her claim against Dr. Krishnanaik.

D E C I S I O N

I.

This court asks two question when reviewing an appeal from summary judgment: (1) whether any genuine issues of material fact exist and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A district court’s decision to dismiss a claim with prejudice will not be reversed absent an abuse of discretion.  Wessin v. Archives Corp., 592 N.W.2d 460, 467 (Minn. 1999).

                                                  II.

Kostrzewski commenced her malpractice action against Dr. Krishnanaik on July 30, 1999.  At that time Minn. Stat. § 541.07(1) (1998) governed her claim and provided in pertinent part:

[T]he following actions shall be commenced within two years:

(1) * * * all actions against physicians, surgeons, dentists, occupational therapists, other health care professionals as defined in section 145.61, and * * * hospitals, sanitariums, for malpractice, error, mistake or failure to cure, whether based on contract or tort.

 

Kostrzewski contends that her claim against Dr. Krishnanaik is not time-barred under this statute of limitations because the limitations period did not begin to run until sometime in August 1997, when, according to her expert, the finger damage became permanent.

     Generally, causes of action for medical malpractice accrue when treatment for the particular condition ceases.  Zagaros v. Erickson, 558 N.W.2d 516, 520 (Minn. App. 1997), review denied (Minn. Apr. 17, 1997). To determine when medical treatment ceased, this court examines: (1) whether there was a relationship between the physician and the patient with regard to the injury that the physician was employed to cure; (2) whether the physician continued to attend to the patient with regard to the injury; and (3) whether there was something more to be done to effect a cure.  Id.

            Under the facts of this case, Dr. Krishnanaik’s treatment of Kostrzewski cannot be construed in any way to have continued past July 24, 1997, when his office contacted Kostrzewski to inquire as to her failure to come in for removal of the sutures.  After this date, Dr. Krishnanaik did not treat Kostrzewski.  Kostrzewski decided to pursue treatment with another physician.  Because her cause of action became time-barred on July 24, 1999, commencement of her cause of action on July 30, 1999, was beyond the two-year statute of limitations.

     Kostrzewski argues that her cause of action did not accrue until she suffered permanent injury.  See Dalton v. Dow Chemical Co., 280 Minn. 147, 153, 158 N.W.2d 580, 584 (1968) (“An action for negligence cannot be maintained, nor does the statute of limitations begin to run, until damage has resulted from the alleged negligence.”).   But Dalton is not a medical malpractice case and therefore is not applicable here.  Furthermore, Kostrzewski’s permanent injury argument is simply a circuitous method for advocating that this court adopt the “discovery rule” as the method for ascertaining when the statute of limitations begins to run for medical malpractice claims.  Minnesota has specifically declined to adopt the discovery rule for medical malpractice, Johnson v. Winthrop Labs., 291 Minn. 145, 150-51, 190 N.W.2d 77, 81 (1971), and we decline to do so now.

There is no genuine issue of material fact concerning the date when Dr. Krishnanaik’s treatment of Kostrzewski ceased and Kostrzewski’s cause of action was clearly commenced beyond the statutory time-period.  Therefore, we conclude the district court’s dismissal of her claim as time-barred was proper. 

III.

Kostrzewski next argues that if the limitation period for her cause of action began to run on July 24, 1997, the four-year statute of limitations, now in effect, should be applied retroactively to her cause of action.  On August 1, 1999, Minn. Stat. §  541.076 became effective changing the limitations period from two years to four for actions “by a patient or former patient against a health care provided alleging malpractice, error, mistake, or failure to cure.”  Minn. Stat. §  541.076 (b) (Supp. 1999).  This new limitations period applies only “to actions commenced on or after [August 1, 1999].”  1999 Minn. Laws ch. 23, § 3.

            Kostrzewski contends that the district court should have applied a theory of equitable tolling.  This court will not reverse a district court’s decision to deny equitable relief absent an abuse of discretion.  Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979).  

Kostrzewski’s argument is based on a false premise; that had she but waited two days and filed her cause of action on August 1, 1999, she would have fallen within the new limitations period.  In effect, Kostrzewski argues that the new limitations period should be applied retroactively to her cause of action for the statute to be given its intended effect.

We reject Kostrzewski’s assertion that the effective-date language governing Minn. Stat. § 541.076 (b) demonstrates a clear and manifest intent to revive claims retroactively.  “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Minn. Stat. § 645.21 (1998).  The presumption against retroactive effect requires

that there be much clearer evidence of retroactive intent in the statute’s language--such as mention of the word “retroactive”--before we determine that a statute was intended to be applied retroactively.

 

Duluth Firemen’s Relief Ass’n v. Duluth, 361 N.W.2d 381, 385 (Minn. 1985);see also State v. Traczyk, 421 N.W.2d 299, 300 (Minn. 1988) (legislature must express its intention to make the statute in question retroactive).  We have held that a statute of limitations amendment “clearly indicated a prospective effect only” when the law indicated that it applied to those actions “commenced on or after” its effective date. Borich v. Borich, 450 N.W.2d 645, 646 (Minn. App. 1990).  Here, the statute in question contains such a provision and therefore indicates prospective, and not retroactive, application.  

Even if a statute is intended, in some respects to be applied retroactively, it cannot revive a previously time-barred claim.  Whitter v. Village of Farmington, 115 Minn. 182, 187, 131 N.W. 1079, 1081 (1911) (amendment of a statute to extend the time to file from six years to eight years “would not revive” a claim that became time-barred a few days prior to the change in the law, even though it would operate to extend the time as to all causes of action not then barred by the old statue); see also Wschola v. Snyder, 478 N.W.2d 225, 226 (Minn. App. 1991) (“[T]he legislature has the power to expand a limitations period for a cause of action accrued but not time barred.”), review denied  (Minn. Feb. 10, 1992).

The new statute of limitations would have benefited Kostrzewski only if her claim was not time-barred under the old statute on August 1, 1999, when the new statute became effective.  But as Kostrzewski’s claim was time-barred pursuant to the previous two-year statute of limintations on July 24, 1999, it could not be revived thereafter.  The district court did not abuse its discretion when it declined to toll the statute of limitations.

IV.

            The district court found that Kostrzewski’s cause of action against North Valley was time-barred. Kostrzewski contends that the district court erred because she filed her claim against North Valley on August 2, 1999, when the new four-year statute of limitations was in effect.

            When a claim against a party is predicated upon the liability of another, the application of the statute of limitations to bar the predicate claim also works to bar the claim against the dependant party.  See Grondahl v. Bulluck, 318 N.W. 2d 240, 244 (Minn. 1982) (claims against medical clinic arising from an employee-doctor’s alleged negligent treatment are barred if the claims against the doctor are time-barred).

            Here, North Valley is only a party to this litigation based on a theory of respondeat superior, that is, Kostrzewski’s only allegation against North Valley is that it “permitted or utilized the services of Dr. Krishnanaik in their emergency room.”  Therefore, because Kostrzewski’s claim against Dr. Krishnanaik is barred by the statute of limitations, her claim against North Valley is also time-barred.

V.

Kostrzewski challenges the district court’s dismissal without prejudice of her claim against Dr. Johnson for lack of personal jurisdiction.  Personal jurisdiction over nonresidents may be obtained by meeting the requirements, see generally, of Minnesota’s long-arm statute, Minn. Stat. § 543.19 (1998), and satisfying the demands of due process.  Howells v. McKibben, 281 N.W.2d 154, 155-56 (Minn. 1979).

The Due Process Clause of the United States Constitution requires that a defendant have "minimum contacts" with a forum state such that maintaining jurisdiction there does not offend "traditional notions of fair play and substantial justice."  International Shoe, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (quotation omitted).

Minnesota courts use a five-factor test to determine whether the exercise of personal jurisdiction is proper:

(1) the quantity of the contacts with the forum state, (2) the nature and quality of the contacts, (3) the source and connection of the cause of action with the contacts, (4) the interest of the state in providing a forum, and (5) the convenience of the parties. 

 

National City Bank v. Ceresot Mill Ltd. P’ship, 488 N.W.2d 248, 252-53 (Minn. 1992) (adopting five-factor test set forth in Aftanase v. Economy Baler Co., 343 F.2d 187, 197 (8th Cir.1965)).   “Any doubt regarding the sufficiency of the contacts to support the exercise of personal jurisdiction should be resolved in favor of finding jurisdiction.”  Marshall v. Inn on Madeline Island, 610 N.W.2d 670, 674 (Minn. App. 2000) (citation omitted).   The defendant’s conduct and connection with the forum state must be such that he should “reasonably anticipate being haled into court there.”  Kreisler Mfg. Corp. v. Homstad Goldsmith, Inc., 322 N.W.2d 567, 571  (Minn. 1982) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980)) (emphasis omitted).

            Kostrzewski contends that Dr. Johnson has sufficient contacts with Minnesota because he practices in Grand Forks, North Dakota, a border city. Kostrzewski also contends that because Dr. Johnson’s employer, Altru Health System, has satellite clinics in Minnesota and because he treated a Minnesota resident and received payment from her Minnesota HMO, that he should reasonably anticipate being haled into court in Minnesota.

But Dr. Johnson simply treated a Minnesota resident and accepted payment from an insurance company based in Minnesota as compensation for services he rendered in North Dakota.   He was simply “brought into contact [with the forum state] incidentally through the unilateral activity” of Kostrzewski.  Stangel v. Rucker, 398 N.W.2d 602,  605 (Minn. App. 1986) (quotation omitted), review denied (Minn. Mar. 13, 25, June 29, 1987).  It was Kostrzewski who contacted his office, Kostrzewski who sought insurance coverage from a Minnesota HMO, and Kostrzewski who sought treatment from a physician practicing exclusively in another state.  Dr. Johnson did not purposefully avail himself of any privilege of practicing in Minnesota.  The district court properly determined that it lacked personal jurisdiction over Dr. Johnson.


VI.

Kostrzewski claims that the district court improperly dismissed her claims against Dr. Krishnanaik and North Valley Health Center with prejudice.  A district court’s decision to dismiss a claim with prejudice will not be reversed absent an abuse of discretion. Wessin, 592 N.W.2d at 467.  Because we conclude that Kostrzewski’s claims against Dr. Krishnanaik and North Valley Health Center are barred by the statute of limitations, we hold that the district court’s dismissal with prejudice does not constitute an abuse of discretion.

Affirmed.

 

 



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

** Retired judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.