This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Roger J. Day,



Michael H. Miner, Ph.D., et al.,


University of Minnesota d/b/a

Program in Human Sexuality, et al.,


Filed June 2, 1998


Davies, Judge

Hennepin County District Court

File No. 967938

Cortlen G. Cloutier, Elizabeth A. Cloutier, Jeremy D. Rosenberg, Cloutier & Cloutier, L.L.P., 900 Nicollet Mall Bldg., Suite 716, 63 South Ninth St., Minneapolis, MN 55402-3115 (for appellant)

William L. Davidson, Richard A. Lind, Sandra E. Brisley, Lind, Jensen & Sullivan, P.A., 150 South Fifth St., Suite 1700, Minneapolis, MN 55402 (for respondents Dr. Michael H. Miner, Ph.D., and University Affiliated Physicians, P.A.)

Charles E. Lundberg, Rebecca Egge Moos, Jeffer Ali, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth St., Minneapolis, MN 55402 (for respondent University of Minnesota)

Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.



Appellant seeks reversal of the district court's grant of summary judgment on, or dismissal of, his claims. We affirm.


In April 1992, appellant Roger J. Day, a licensed physician, was convicted of fourth-degree criminal sexual conduct (sexual contact with a patient). He was employed by the University of Minnesota at the time of the offense. As a result of his conviction, appellant was referred to the University of Minnesota's Program in Human Sexuality (Sexuality Program), where he began treatment with respondent Michael H. Miner, Ph.D. Dr. Miner is associated with respondent University Affiliated Family Physicians, P.A. The Sexuality Program is part of the University of Minnesota Medical School, Department of Family Practice, also a respondent.

In December 1992, appellant and the Minnesota Board of Medical Practice (the Board) entered into a stipulation and order. As part of the stipulation, appellant agreed that his medical license would be conditioned and restricted pending his successful completion of the Sexuality Program's sex offender treatment program. Dr. Miner made April 1993 and August 1993 progress reports to the Board. Dr. Miner made a final report to the Board, at the Board's request, in April 1994.

During treatment, appellant made oral and written requests to review his medical records. Dr. Miner denied the requests, stating by letter that such review would be "counter-therapeutic."

Appellant subsequently brought suit, alleging that Dr. Miner and the other respondents (through Dr. Miner) defamed him and violated Minnesota law by denying him access to his medical records and by releasing private medical data to the Board. He also alleged that Dr. Miner committed malpractice in his treatment of appellant. Appellant also claimed that, as an employee, he was entitled to indemnification by respondent University. This appeal follows the district court's grant of summary judgment on, or dismissal of, appellant's claims.


On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). "Questions of law, including the interpretation of statutes, are subject to de novo review." Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997).

I. Deference to Commissioner

Before bringing this lawsuit, appellant sought opinions from the Commissioner of the Department of Administration regarding access to and release of his medical records. The issues decided by the commissioner were: (1) whether the commissioner had authority to decide if the University could properly deny appellant access to his medical records; (2) whether the University's denial of access was proper; and (3) whether Dr. Miner's release of the April 1993 and April 1994 reports to the Board violated the Data Practices Act. The commissioner opined that the Sexuality Program improperly denied appellant access to his medical records and that its release of appellant's medical data occurred without his consent and was not authorized by Minnesota law. Appellant argues that the district court erred by not deferring to the commissioner's opinions. See Minn. Stat. § 13.072, subd. 2 (1996) (in proceedings involving data, court must give deference to commissioner's opinions).

On these issues, which involved the interpretation of statutes, the district court was not compelled to follow the commissioner. See Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn. 1978) (reviewing court not bound by administrative agency's interpretation of statutes); No Power Line, Inc. v. Minnesota Envtl. Quality Council, 262 N.W.2d 312, 320 (Minn. 1977) (reviewing court not bound by agency decision and need not defer to agency expertise if decision is based on legal rather than factual considerations).

Further, although entitled to some "deference," the commissioner's opinions are not binding on the state agency whose data is the subject of the opinion. Minn. Stat. § 13.072, subd. 2. Thus, they are not binding on a reviewing court.

II. Denial of Access to Medical Records

Appellant argues that respondents violated Minnesota law by denying him access to his medical records. Minn. Stat. § 144.335, which governs patient access to health records, states that a provider shall, on request, furnish diagnosis, treatment, and prognosis information to a patient. Minn. Stat. § 144.335, subd. 2(a) (1996). But, if a provider

reasonably determines that the information is detrimental to the physical or mental health of the patient, or is likely to cause the patient to inflict self harm, or to harm another, the provider may withhold the information from the patient * * * .

(d) A provider * * * shall release information upon written request unless, prior to the request, a provider * * * has designated and described a specific basis for withholding the information as authorized by paragraph (c).

Minn. Stat. § 144.335, subd. 2(c), (d) (1996) (emphasis added).

The record shows that respondents complied with the statutory requirements for withholding information. In June 1992, before any request for access by appellant, Dr. Miner completed a Sexuality Program form entitled "Patient Access to Medical Record." On the form, Dr. Miner justified limiting appellant's access to medical records by noting: "nature of case, subject to misinterpretation." Although the basis for restricting access is not stated in the language of the statute, it is sufficient that Dr. Miner had determined "that the information is detrimental to the physical or mental health of the patient."

Appellant contends that Dr. Miner could not "reasonably determine" what information would be detrimental to appellant if disclosed because he completed the patient access form before commencement of treatment. Dr. Miner, however, completed the form after appellant's intake interview and after that interview, Dr. Miner had sufficient information about appellant to determine whether there would be some treatment information that should not be disclosed.

III. Improper Release of Medical Data

The Minnesota Government Data Practices Act classifies medical data as private and available only to the subject of the data. Minn. Stat. § 13.42, subd. 3 (Supp. 1997). Private data may, however, be disseminated if the subject of the data has given "informed consent." Minn. Stat. § 13.05, subd. 4(d) (1996). Minn. Stat. § 144.335, subd. 3a(a) (Supp. 1997), also prohibits release of patient health records without a signed and dated consent. Appellant argues that release of the April 1994 report to the Board violated these statutes.[1]

In the December 1992 stipulation and order, appellant agreed with the Board that his medical license would be conditioned and restricted pending successful completion of the Sexuality Program. Appellant also agreed to "arrange for the Program to transmit a written report directly to the Board." The report was to include appellant's goals and accomplishments and any recommended limits on appellant's practice. Appellant provided a copy of the stipulation to Dr. Miner and indicated that he wanted reports sent to the Board. By agreeing to the stipulation and by requesting that Dr. Miner comply with the stipulation, appellant authorized Dr. Miner's reports. Appellant's apparent dissatisfaction with the content of the April 1994 report does not countermand his agreement to provide reports to the Board.

Appellant also argues that, because he was refused access to his medical records, he was not in a position to give "informed" consent. In this context, however, "informed consent" means that a patient has "sufficient mental capacity" to appreciate the consequences of consent. Minn. R. 1205.1400, subpt. 3 (1997). It does not mean a patient has the right to read, edit, and selectively withhold reports. The authorization provided by the stipulation constitutes informed consent. Respondents, in releasing the April 1994 report to the Board, did not violate the Data Practices Act or Minn. Stat. § 144.335.

IV. Defamation

The district court dismissed appellant's defamation claim on the ground that the reports prepared by Dr. Miner were subject to a qualified privilege.

In reviewing cases dismissed for failure to state a claim on which relief can be granted, "[t]he only question before [the reviewing court] is whether the complaint sets forth a legally sufficient claim for relief."

Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quoting Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955)).

The existence of a qualified privilege is a question of law. Bol, 561 N.W.2d at 149.

One who makes a defamatory statement will not be held liable if the statement is published under circumstances that make it qualifiedly privileged and if the privilege is not abused.

Id. For a qualified privilege to attach, the statement "`must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.'" Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256-57 (Minn. 1980) (quoting Hebner v. Great N. Ry., 78 Minn. 289, 292, 80 N.W. 1128, 1129 (1899)).

Here, Dr. Miner sent the April 1994 report at the Board's request. The report contained the information requested by the Board and required by the December 1992 stipulation: a summary of treatment goals and progress and recommended limitations on appellant's medical practice. The report was made upon a proper occasion, from a proper motive, and was based on reasonable cause.

A qualified privilege can be defeated by a showing of malice. Stuempges, 297 N.W.2d at 256-57. The plaintiff must show malice, defined as "actual ill will, or a design causelessly and wantonly to injure plaintiff." Frankson v. Design Space Int'l, 394 N.W.2d 140, 144 (Minn. 1986) (quoting McBride v. Sears, Roebuck & Co., 306 Minn. 93, 98, 235 N.W.2d 371, 375 (1975)). Malice cannot be implied from the statements themselves or from the fact that they may be false. Bol, 561 N.W.2d at 150.

Malice can be shown by extrinsic evidence of personal spite, as well as by intrinsic evidence such as "the exaggerated language of the libel, the character of the language used, the mode and extent of publication, and other matters in excess of the privilege."

Id. (quoting Frankson, 394 N.W.2d at 144).

Appellant presents no such evidence of actual malice. Instead, appellant contends that the report was written to retaliate for appellant's complaints to the Board of Psychology. But that contention is speculative and, as such, insufficient to create a genuine issue of material fact as to whether there was malice. See Frankson, 394 N.W.2d at 144-45 (overturning finding of malice where plaintiff's evidence only suggested an alternative motive for action taken); Kletschka v. Abbott-Northwestern Hosp. Inc., 417 N.W.2d 752, 756 (Minn. App. 1988) (summary judgment proper where appellant provides no evidence to support allegation of malice), review denied (Minn. Mar. 30, 1988).

V. Malpractice Claim

Malpractice actions against physicians, other health care professionals, and hospitals must be commenced within two years after the cause of action accrues. Minn. Stat. §§ 541.01, 541.07(1) (1996). A cause of action in medical malpractice generally stops accruing when treatment ceases. Haberle v. Buchwald, 480 N.W.2d 351, 354 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). Three factors are to be considered in determining when treatment ceases:

(1) whether there is a relationship between physician and patient with regard to the illness; (2) whether physician is attending and examining the patient; and (3) whether there is something more to be done.

Krause v. Farber, 379 N.W.2d 93, 96 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).

Here, the record indicates that appellant's Sexuality Program treatment ended in November 1993. Dr. Miner and other Sexuality Program staff decided to terminate appellant's treatment at that time because they believed appellant "had benefited as much as he was going to" from the Sexuality Program. Appellant also indicated by letter dated November 22, 1993, that he could no longer afford to continue treatment in the Sexuality Program.

Appellant contends that Dr. Miner's progress reports were a "psychological service," and treatment did not end until Dr. Miner made his final report to the Board on April 21, 1994. Appellant cites Minn. R. 7200.5000, subpt. 3 (1997) (providing report or expert testimony about psychological health of client is "psychological service"). But that rule merely explains what services are subject to professional licensure. It does not define when treatment ends for purposes of the malpractice statute of limitations. See Zagaros v. Erickson, 558 N.W.2d 516, 520-21 (Minn. App. 1997) (treatment ends when relationship ends, not when psychologist testifies at hearing about prior treatment), review denied (Minn. Apr. 17, 1997). The April 1994 report was done at the Board's request and indicates that appellant terminated treatment in November 1993. Appellant has offered no evidence of a treatment relationship with Dr. Miner after November 1993. Because appellant did not commence this lawsuit until April 1996, his malpractice claim is barred by the two-year statute of limitation.

VI. Indemnification

Appellant argues that the district court erred in concluding that appellant had no right to indemnification under the University's policy. In response, the University contends that its decision to deny indemnification is reviewable only by certiorari, not through this appeal.

"[J]udicial review of the quasi-judicial decisions of administrative bodies * * * must be invoked by writ of certiorari." Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). Quasi-judicial acts are "those administrative decisions which are based on evidentiary facts and which resolve disputed claims of rights." Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275, 279 (Minn. 1996).

Here, appellant requested that the University indemnify him for the fines and expenses he incurred as a result of his criminal conviction. This request required a University investigation into the claim and a final indemnification decision by the University president. Because a challenge to the decision necessitates scrutiny of the manner in which the University discharged a quasi-judicial function, review of the decision must be by certiorari. The district court lacked jurisdiction to decide this issue and, because appellant did not obtain a timely writ of certiorari, this court also is without jurisdiction to address the issue. See Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 677-78 (Minn. 1990) (where teacher required to obtain writ of certiorari within 60 days of school board decision, district court lacked subject matter jurisdiction).

We affirm the district court's disposal of all claims by either grant of summary judgment or dismissal.[2]


[ ]1 At oral argument, counsel indicated that appellant's claims of improper release of medical data and defamation relate only to the April 1994 report.

[ ]2 Appellant and respondents raise other issues. These need not be decided in light of our resolution of issues addressed.