This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Raymond L. Semler,
Filed July 10, 2007
File No. 52-CV-05-776
Raymond Leon Semler, OID No. 206261, 1111 Highway 73, Moose Lake, MN
55767-9452 (pro se appellant)
Lori Swanson, Attorney General, Marsha Eldot Devine,
Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
MN 55101-2134 (for respondent)
decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Raymond Semler challenges the dismissal of his complaint for
failure to state a claim on which the court may grant relief. Semler alleged that a nurse at the Minnesota Security Hospital
violated the state and federal patients’ bills of rights, criminally abused a
vulnerable adult, knowingly transferred a communicable disease, and committed
medical malpractice. With the exception
of medical malpractice, none of the grounds on which Semler sought relief supports
a private cause of action. With respect
to his medical-malpractice claim, Semler did not provide an affidavit complying
with the expert-review statute. The
district court found that allowing an opportunity to cure would be futile. Because Semler does not challenge this
finding on appeal, we affirm the dismissal of his complaint in its entirety.
This appeal arises from the dismissal of Raymond Semler’s
complaint alleging medical mistreatment while at the Minnesota Security
Hospital. When reviewing dismissal for failure to state
a claim, we assume that the factual allegations in the complaint are true. Bodah
v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).
Semler’s complaint alleged that he was a resident of the security
hospital in September 2005. On September
10, he asked Donna Finch, a nurse, if he could go to the hospital to have a
carbuncle treated. Finch responded, “[Y]ou
will not be taken to the hospital, because you have not come up to the nurse
station and asked for any Tylenol or Ibupro[f]en.” Semler saw a physician on September 12 and
again asked permission to go to the hospital.
The physician told him that he would “wait to see what the culture comes
back to say.” Semler was taken to the
hospital on September 16 and diagnosed with an infection, methicillin-resistant
Semler asserted that Finch’s denial of his hospital request
caused him “pain that is indescribable.”
He stated that staff members gave him a wheelchair to keep his swollen
leg elevated, that he fell on September 12 because of pain, and that between
September 10 and 16, he and other patients repeatedly asked staff members to
take Semler to the hospital. Staff
members responded to these requests by saying that they were aware of the
problem and that he did not need to go to the hospital.
that Finch violated the state and federal patients’ bills of rights, criminally
abused a vulnerable adult, knowingly transferred a communicable disease, and
committed medical malpractice. The
district court granted Finch’s motion to dismiss for failure to state a claim,
and Semler appeals.
D E C I S I O N
A defendant may move to dismiss a complaint for failure to state
a claim on which relief can be granted. Minn. R. Civ. P.
12.02(e). We review a district court’s decision on
a rule 12.02(e) motion de novo. Bodah v. Lakeville Motor Express, Inc.,
663 N.W.2d 550, 553 (Minn.
The court must consider only the facts alleged in the complaint and
evaluate whether the complaint, when accepting its allegations as true, sets
forth a legally sufficient claim for relief.
Id. The district court appropriately dismissed
Semler’s complaint with prejudice.
Semler’s reliance on the state and federal patients’ bills of
rights is misplaced as neither creates a private cause of action. To determine whether a statute implies a private
cause of action, the court must consider three factors: (1) whether the
plaintiff belongs to the class the statute was enacted to benefit; (2) whether
the legislature indicated its intent to create or deny a remedy; and (3)
whether implying a remedy is consistent with the underlying purpose of the
statute. Flour Exchange Bldg. Corp. v. State, 524 N.W.2d 496, 499 (Minn.
App. 1994), review denied (Minn. Feb.
We find that the Minnesota Patients Bill of Rights does not provide
a private cause of action. It specifies
a series of rights intended to “promote the interests and well being of the patients
and residents of health care facilities.” Minn. Stat. § 144.651, subd. 1 (2006). It establishes a grievance procedure for
subd. 20 (2006). The legislature vested
the state commissioner of health with exclusive authority to inspect facilities
and to enforce the statutory rules and standards. Id. §
144.653, subd. 3 (2006). The
commissioner may issue a correction order for a “substantial violation of the
rights of any patient or resident as defined in section 144.651.” Id.
§§ 144.652, subd. 2, .653, subd. 5 (2006).
Issuing a correction order does not “preclude, diminish, enlarge, or otherwise alter private action by or on behalf of
a patient or resident to enforce any unreasonable violation of the patient’s or
resident’s rights.” Id. § 144.652,
subd. 2 (emphasis added). By giving the
commissioner of health exclusive authority to enforce the patients bill of
rights and expressly stating that issuance of a correction order will not
enlarge or alter a private action, the legislature demonstrated that it did not
intend to create a new private cause of action.
Similarly, federal courts have held that the only codified federal
patients bills of rights, which address mental-health patients and
developmentally disabled persons, do not establish a private cause of
action. See Monahan v. Dorchester Counseling
Ctr., Inc., 961 F.2d 987, 994-95 (1st Cir. 1992); Smith
v. Au Sable Valley Cmty. Mental Health Servs., 431 F. Supp.2d 743, 750-51
(E.D. Mich. 2006). Semler’s
bill-of-rights claim therefore has no legal basis.
Semler relies on criminal statutes to allege that Finch
criminally abused a vulnerable adult and knowingly transferred a communicable
disease. A criminal statute, however,
cannot be the basis of a civil cause of action unless the statute provides for
the action, either expressly or by clear implication. Summers
v. R&D Agency, Inc., 593 N.W.2d 241, 245 (Minn. App. 1999). Neither statute on which Semler relies
expressly or impliedly permits a civil cause of action. See Minn.
Stat. §§ 609.2241, subd. 2, .2325, subd. 1 (2004) (stating elements of knowing
transfer of communicable disease and criminal abuse of vulnerable adult). Semler also made no allegations against Finch
that would satisfy the necessary elements of these statutes. The statutes do not support his claims.
Semler also failed to state a claim of medical malpractice by
Finch. To prove medical malpractice, a plaintiff must
establish a standard of care recognized by the medical community and applicable
to the defendant’s conduct, a departure from that standard, and injuries to the
plaintiff directly caused by the departure.
Plutshack v. Univ.
of Minn. Hosps., 316 N.W.2d 1, 5 (Minn. 1982). A plaintiff alleging malpractice against a
health-care provider must also comply with statutory expert-review requirements
when expert testimony is necessary to establish a prima facie case. Minn.
Stat. § 145.682, subd. 2 (2006). The
expert-review statute requires the plaintiff to serve an affidavit with the
complaint stating that an expert has reviewed the facts of the case and is of
the opinion that the defendant deviated from the standard of care and caused
the plaintiff injury. Id.,
subds. 2, 3(a) (2006). The statute also provides
that failure to serve this affidavit within sixty days of a demand results in
mandatory dismissal with prejudice. Id.,
subd. 6(a) (2006).
Semler’s malpractice claim requires expert testimony to establish
a prima face case. See Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000) (noting that expert testimony is
generally required in medical-malpractice cases because they involve complex
scientific or technological issues). Semler
did not serve an affidavit complying with the statute. Although Finch failed to demand an affidavit,
the district court granted Finch’s motion to dismiss, finding that allowing
Semler additional time to comply would be futile. Semler has not challenged the district
court’s futility finding on appeal. We
therefore affirm the district court’s dismissal of Semler’s complaint in its