This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Lisa A. Broek, trustee for the next of kin of Alan L. Uetz, decedent,


Park Nicollet Health Services, et al.,


Filed March 14, 2006


Wright, Judge


Hennepin County District Court

File No. WC 01-18095



David F. Herr, Julian C. Zebot, Maslon Edelman Borman & Brand, L.L.P., 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402-4140; and


James S. Reece, Zelle, Hofmann, Voelbel, Mason & Gette, L.L.P., 500 Washington Avenue South, Suite 4000, Minneapolis, MN  55415 (for appellant)


Katherine A. McBride, James F. Roegge, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN  55402 (for respondents)



            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N




In this wrongful-death action for medical malpractice, the jury found that decedent was negligent, found that respondent healthcare providers were not negligent, and awarded no damages.  Appellant, decedent’s next of kin, argues that the district court abused its discretion by (1) ruling that certain notations in decedent’s medical records were admissible under Minn. R. Evid. 803(4); (2) declining to exclude the evidence as unfairly prejudicial under Minn. R. Evid. 403; and (3) denying appellant’s motion for a new trial on the grounds of erroneous evidentiary rulings.  We affirm.



As a teenager, decedent Alan Uetz was diagnosed with a ventricular septal defect (VSD), a condition identified by an opening or defect in the muscular wall separating the two ventricles of the heart.  When Uetz was in college, physicians monitored his condition but did not place any restrictions on his activities.  In 1991, at age 30, Uetz underwent an echocardiogram.  The results showed no sign of VSD.  Rather, it showed symptoms of a condition called idiopathic hypertrophic subaortic stenosis, commonly referred to as hypertrophic cardiomyopathy (HCM).  HCM causes a thickening of the heart muscle, which can lead to sudden cardiac death. 

During a June 1992 visit to respondent Park Nicollet Medical Center (Park Nicollet), Uetz reported that he had no chest pain or trouble breathing.  He also reported that he had stopped taking a prescribed beta-blocker[1] because it gave him severe heartburn.  In August 1992, respondent Dr. Phillip J. Ranheim, a cardiologist employed by Park Nicollet, examined Uetz and noted that Uetz had been treated with a different beta-blocker that Uetz also could not tolerate because of stomach discomfort.  Dr. Ranheim recorded that Uetz was “very active and plays basketball, racquetball, jogs, walks, and does regular exercise 2-3x ever[y] week.  No cardiac symptoms whatsoever.”  Dr. Ranheim recommended that Uetz undergo laboratory studies and another echocardiogram “for a baseline.” 

The echocardiogram was administered on February 12, 1993.  After examining the results, Dr. Ranheim advised Uetz by letter that his echocardiogram was “really very satisfactory” and showed “nothing there that is alarming.”  Dr. Ranheim added: “From this echocardiogram, I would not feel that you should restrict any of your activities.”  Dr. Ranheim repeated an earlier recommendation that Uetz return for the remaining cholesterol and blood-sugar tests and concluded his letter by stating: “We should see you every couple of years to make sure that everything stays stable.” 

Uetz did not return to Dr. Ranheim or follow up with any other cardiologist.  On September 5, 2000, Uetz suffered cardiac arrest while playing racquetball at a local YMCA.  Uetz was taken to Hennepin County Medical Center for treatment and died approximately 20 days later when he was removed from life support. 

Uetz’s wife, appellant Lisa Broek, sued Dr. Ranheim and Park Nicollet (collectively respondents) for medical negligence.  Respondents moved for summary judgment, contending that the action was time-barred by the statute of limitations.  The district court granted the motion, and Broek appealed.  We reversed and remanded, concluding that the claims were not time-barred because, when “the injury does not occur until after the treatment ceases, the cause of action accrues at the time of the injury.”  Broek v. Park Nicollet Health Servs., 660 N.W.2d 439, 439 (Minn. App. 2003), review denied (Minn. July 15, 2003). 

On remand, the case proceeded to trial.  The jury returned a special verdict, finding Uetz negligent, finding Dr. Ranheim not negligent, and awarding no damages.  Broek moved for a new trial, which the district court denied.  This appeal followed. 



            Broek raises several challenges to the admissibility of a portion of Uetz’s medical records.  At issue are notations in the medical records written by a physician that describes a recent episode of dizziness that Uetz experienced while playing basketball.  Broek argues that the district court erred by admitting the evidence under Minn. R. Evid. 803(4), declining to exclude the evidence as unfairly prejudicial under Minn. R. Evid. 403, and denying her motion for new trial based on erroneous evidentiary rulings. 


            The decision to admit or exclude evidence is committed to the broad discretion of the district court, and its evidentiary rulings will not be disturbed unless they are based on an erroneous view of the law or constitute an abuse of discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).


Broek first argues that the notations in Uetz’s medical records relating to an episode of dizziness are not admissible under Minn. R. Evid. 803(4) because the notations are not statements for the purpose of medical diagnosis or treatment.  Rule 803(4) provides that “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are not excluded under the hearsay rule even though the declarant is unavailable as a witness.  Minn. R. Evid. 803(4).  Such statements are admissible whether describing the pain, symptoms, or sensations existing prior to or at the time of the doctor’s consultation.  Peterson v. Richfield Plaza, Inc.,252 Minn. 215, 228, 89 N.W.2d 712, 721 (1958).  Moreover, statements admissible under rule 803(4) may be made by someone other than the patient when the patient’s condition renders the patient unable to provide the information.  See, e.g., Gordon v. Eng’g Constr. Co., 271 Minn. 186, 188, 135 N.W.2d 202, 204 (1965) (permitting attending physician to testify under business-records exception (prior to existence of Minn. R. Evid. 803(4)) about patient’s medical history received from third party when patient is unable to provide information himself by reason of disability).

Notes regarding the earlier episode appear three times in Uetz’s medical records.  They first appear on the Resident’s History and Physical form (medical-intake form) dated September 5, 2000.  This medical-intake form, completed when Uetz was admitted to HCMC, describes Uetz’s then-current medical condition, medical history, cardiac risk factors, social history, and medication.  Appearing on the first page, the statement reads, “previous episode—felt faint—playing Basketball--sat down and [symptoms] went away.”  The statement next appears on a Consultation/Referral form, which indicates, “episode of dizziness playing BB several months ago.”  The third reference to the episode appears on an Inpatient Consultation form dated September 6, 2000.  This form states: “Several months ago while playing basketball he felt faint and had to sit down and rest and his symptoms then subsided.”

Broek’s contention that these notes do not constitute statements describing past symptoms made for medical diagnosis or treatment is unavailing.  Each statement describes an event that would reasonably inform the judgment of Uetz’s physicians regarding the appropriate medical treatment for a patient who has suffered cardiac arrest during vigorous physical activity.  Both the prior episode and Uetz’s cardiac arrest occurred during strenuous activity.  The notes do not state the cause or manner in which the injury at issue in the case was sustained, which would be inadmissible under the rule.  See Brown v. St. Paul City Ry. Co., 241 Minn. 15, 23-24, 62 N.W.2d 688, 694-95 (1954) (applying business-records exception to hospital records).  Rather, they describe past symptoms reasonably pertinent to treatment for cardiac arrest.  As such, the district court did not err in determining that the notes are statements made for the purpose of medical treatment or diagnosis as contemplated by Minn. R. Evid. 803(4). 


            Broek next argues that the notations were erroneously admitted because they lacked foundation in that the declarant who supplied the medical history is unidentified.  Because she denies providing this aspect of the medical history, Broek maintains that the original declarant is not simply unavailable, but unknown.  “Evidentiary rulings concerning materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence are within the trial court’s sound discretion and will only be reversed when that discretion has been clearly abused.”  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted). 

The rationale supporting rule 803(4) relates to the inherent trustworthiness of information provided under the circumstances contemplated by the rule.  It is founded on the principle that a patient or other interested party would not state untrue facts to a physician when proper treatment depends on a diagnosis or a course of treatment based, at least in part, on what the doctor is told regarding the patient’s medical history or condition.  Peterson, 252 Minn. at 227, 89 N.W.2d at 721; see also Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 228 (Minn. 1986) (reasoning that medical records related to an accident’s cause lacked requisite trustworthiness for business-records hearsay exception unless relevant to patient’s medical care).  A similar rationale for trustworthiness of business records admitted under Minn. R. Evid. 803(6) exists because the business records “will be relied upon in the operation of the business, and it is fair to presume that it is in the interest of the one making the entry that it be truthful and accurate.”  Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 234, 214 N.W.2d 672, 679 (1974).  The medical-records exception to the hearsay rule of exclusion “represents a judgment as to which hearsay statements are so trustworthy as to be admissible without requiring the production of the declarant when available.”  Minn. R. Evid. 803 comm. cmt. n.2.  Thus, we examine whether the circumstances under which the disputed notations were taken undermine their trustworthiness to a degree that exempts them from the application of rule 803(4).

In her motion in limine to exclude the notations, Broek disputed the occurrence of the episode described and claimed that she was not the source of the information.  Dr. Ranheim responded by proffer, submitting a sworn affidavit from Dr. Laurie Azine, the medical resident who received, transcribed, and signed the medical history.  The affidavit establishes that Dr. Azine took the medical history from Broek.  Dr. Ranheim offered to call Dr. Azine to testify regarding the creation of the medical records and the source of the information included therein.  But Broek objected.  Based on the proffered affidavit, the medical-records exhibit, and the arguments of counsel, the district court determined that there was adequate foundation to admit the medical records in their entirety, without the live testimony of Dr. Azine; and the district court granted Broek’s motion to exclude testimony from Dr. Azine at trial as to the source of the medical history, including that which appears in the notations. 

At trial, Broek introduced the medical records, including the notations, during her case in chief.  As to the notations, Broek testified that she did not recall speaking with Dr. Azine on the day that Uetz was admitted into the hospital, and Broek denied making the statements recorded in the notations to anyone.

Broek correctly argues that the district court may exclude medical records containing statements from unidentified sources.  Bahl v. Country Club Mkt., Inc., 410 N.W.2d 916, 919 (Minn. App. 1987).  But unlike Bahl, the record demonstrates that the declarant of the dizziness episode is not unknown, but disputed.  The medical-intake form identifies Broek as the source of the medical history, and Dr. Azine’s affidavit and proffered testimony are consistent with the medical records. 

Broek maintains that, because she claims that she is not the source of the information contained in the disputed notations, no further analysis of the proffered evidence is warranted.  By this argument, Broek invites us to limit the record to her testimony in which she denied making the statements.  Broek contends that Dr. Azine’s sworn affidavit and Dr. Ranheim’s offer of proof are not part of the record for our review of the district court’s evidentiary decisions.  We disagree.  We may not base our “decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.”  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  Our record consists of the arguments made to the district court during the motion in limine as well as documents and exhibits the parties submitted to the district court.  As an exhibit to the memorandum in opposition to Broek’s motion in limine, Dr. Azine’s affidavit was received in the record as was Broek’s proffered denial that she was the source of the information.  The district court was not required to receive live testimony in order to determine whether the evidentiary foundation was sufficient to admit the medical records in their entirety.  Our record also consists of the district court’s statements related to its decision to admit the medical records and grant Broek’s motion to exclude the testimony of Dr. Azine.  Broek’s argument asks us to ignore the record from the proceedings on the motion in limine, which we decline to do.  Given the record of the proceedings before the district court, we cannot conclude that the statements reflected in the notations are inherently unreliable simply because Broek denies making them. 

            After objecting to Dr. Azine’s testimony, Broek now asserts that the district court erred by relying on Dr. Azine’s affidavit rather than her live testimony.  Any foundational deficiency created by Dr. Azine’s failure to testify is one of Broek’s own creation.  The parties knew of Dr. Azine’s identity as the preparer of the medical-intake form because her name appears on the face of the document.  They also knew that the form attributed Broek as the source of the information contained in it.  Absent a dispute about late disclosure of the medical records, we presume that Broek was aware of their existence and content during the discovery phase of the case.  Broek could have deposed Dr. Azine in order to determine Dr. Azine’s knowledge of the medical-intake form and her interview with Broek. 

            Broek maintains that she learned that Dr. Ranheim intended to call Dr. Azine as a witness only shortly before trial.  Broek argued before the district court and asserts now that she would have been prejudiced by conducting a deposition of Dr. Azine in front of the jury.  This argument is unavailing for at least two reasons.  First, Dr. Azine, as the named preparer of the medical-intake form, was known to the parties.  Second, Dr. Ranheim included Dr. Azine’s name on his witness list in response to Broek’s motion in limine, which specifically challenged evidence that would otherwise be admissible.  Moreover, Broek could have sought to examine Dr. Azine outside the presence of the jury if testimony beyond the affidavit were necessary to challenge the foundation for the notations.  A decision on the sufficiency of evidentiary foundation is within the discretion of the district court.  McKay’s Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).  Neither litigation strategy nor Broek’s reluctance to investigate Dr. Azine’s knowledge of the source of the medical history provided in the medical-intake form compels the conclusion that the district court abused its discretion by admitting the medical records without modification.  

             Broek also points to other errors in the medical records and invites us to conclude that the notations lack trustworthiness.  We decline to do so.  “Errors or discrepancies in the record being offered or other similar records do not by themselves show the offered record is untrustworthy . . . .”  4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 450, at 537 (2d ed. 1994).  The disputed notation first appears in the margin of the top-half of the first page of the medical-intake form in close proximity to the description of Uetz’s cardiac arrest and other recent medical history that the records indicate, and Broek admits, were provided by Broek.  The handwriting appears consistent with the other recorded notations that appear on the medical-intake form.  The medical-intake form contains extensive references to Uetz’s medical history and condition.  The substance of the notation is repeated with some variation two other times in the medical records.  In light of the record supporting the district court’s determination that the medical records, including the disputed notations, were trustworthy, this determination will not be disturbed. 

            The district court listened to the parties’ arguments on the motion in limine and considered Dr. Azine’s affidavit and Dr. Ranheim’s willingness to secure Dr. Azine’s live testimony to supply additional evidentiary foundation for the disputed notations, as well as Broek’s objections.  The district court crafted a resolution of the conflicting interests underlying the motion that exhibits a sound application of the law and an appropriate exercise of its discretion.  Admission of the disputed evidence under Minn. R. Evid. 803(4) was proper. 


            Broek next contends that the district court abused its discretion by admitting the medical-records notations because they had no probative value and were severely prejudicial to her case.  Relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”  Minn. R. Evid. 403.  The district court is afforded broad discretion to determine if relevant evidence must be excluded under rule 403, and we will not reverse that decision unless the district court clearly abused its discretion.  Wagner, 396 N.W.2d at 229.

            Broek argues that the notations had virtually no probative value.  But the medical-records notations were probative of Uetz’s physical activities, his medical condition, and the possible cause of his cardiac arrest.  Although the probative value of this evidence arguably is small relative to the voluminous medical records introduced at trial, this did not preclude its admission.

            Evidence does not violate rule 403 merely because it is damaging to one party’s case.  See Betzold v. Sherwin, 404 N.W.2d 286, 288 (Minn. App. 1987) (finding alleged erroneously admitted record of past medical history not prejudicial under rule 403), review denied (Minn. June 25, 1987).  Broek had the opportunity to provide context for the notations, and she sought to minimize any effect that they would have on the jury.  During her direct examination, Broek testified that she was not aware of Uetz playing basketball and that she was not the source of this portion of Uetz’s medical history.  Furthermore, any claim of unfair prejudice belies Broek’s introduction of the medical records from the final hospital admission, which was not, as she concedes, necessary to establish the particular incidents of alleged malpractice in 1993. 

            Because Broek has not established that the probative value of the disputed notations was substantially outweighed by the danger of unfair prejudice, the district court did not abuse its discretion by declining to exclude the evidence under Minn. R. Evid. 403. 


Were we to conclude that the district court erred in admitting the disputed evidence, Broek would not be entitled to a new trial because the record contains ample evidence apart from that in dispute to support the jury’s finding that Dr. Ranheim was not negligent. 

“Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Kroning, 567 N.W.2d at 46 (quotation omitted).  We “will not set aside a jury verdict on an appeal from a district court’s denial of a motion for a new trial unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.”  Navarre v. S. Washington County Schs., 652 N.W.2d 9, 21 (Minn. 2002) (quotations omitted).  This standard has not been met here.

Dr. Ranheim testified that all patients with HCM are at risk of sudden death from cardiac arrest regardless of the severity of the disease or the patient’s exercise level.  Dr. Ranheim described discussing with Uetz the risk of sudden death associated with the condition and Uetz’s need “to pay attention to his symptoms very carefully” because they could pose a warning that the heart disease is worsening.  From either Uetz’s Iowa medical records or Uetz himself, Dr. Ranheim understood that Uetz was under no physical restrictions.  Because Uetz was asymptomatic, Dr. Ranheim advised Uetz to return for an examination “every couple of years to make sure that everything stays stable.”  Dr. Ranheim advised Uetz that, if symptoms arose, he should return for an evaluation of the cause of the symptoms.  During cross-examination, Dr. Ranheim acknowledged that he was aware of a connection between strenuous exercise in patients with HCM and sudden death.  And he admitted that the standard of care would include advising Uetz of an association between strenuous exercise and the risk of sudden death, which Dr. Ranheim did not do. 

Dr. David Benditt, respondents’ expert witness, testified that, considering Uetz’s physical condition in 1992, it was appropriate for Dr. Ranheim not to advise Uetz to restrict his activities.  According to Dr. Benditt, the medical community does not know definitively whether exercise increases the risk of death for an HCM patient.  And a physician’s advice to restrict the activities of a low-risk patient would have an adverse effect on the patient’s sense of well-being and would not necessarily prolong life. 

In contrast, Broek’s expert witness, Dr. Barry Maron, whose qualifications and experience were notably impeached, testified that the standard of care would have been to restrict Uetz from all vigorous activity, “particularly strenuous physical activities.”  Dr. Maron testified that Dr. Ranheim breached that standard of care by not restricting Uetz from playing racquetball.  

Viewing the evidence as a whole in the light most favorable to the verdict, the jury reasonably could have weighed the testimony of Dr. Ranheim and that of the competing experts in favor of Dr. Ranheim.  Broek points to the special-verdict form as proof that the disputed notations prejudiced the jury.  In that form, the jury determined that Uetz was negligent, Dr. Ranheim was not negligent, and Broek was not entitled to damages.  Broek maintains that, by finding Uetz negligent and finding no damages, the jury relied on the medical-records evidence in a manner unfairly prejudicial to Broek.  This argument, however, ignores Dr. Benditt’s testimony and the unrebutted evidence that, after Uetz was advised by Dr. Ranheim in 1993 to return “every couple of years,” he failed to follow up with Dr. Ranheim or any other cardiologist.  Thus, even if Broek could establish an improper evidentiary ruling, the absence of prejudicial error precludes entitlement to a new trial. 


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

[1] A beta-blocker is prescribed to reduce symptoms associated with hypertension and cardiac arrhythmia.