This opinion will be unpublished and

may not be cited except as provided by

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




Shirley Porter, et al.,



Children's Health Care - Minneapolis, et al.,


Abbott Northwestern Hospital, et al.,


Filed February 16, 1999


Shumaker, Judge

Hennepin County District Court

File No. 972201

Jesse Gant, III, Nancy Coyle Strahan, Mary E. Smits, Gant Law Office and Associates, 670 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellants)

Rebecca Egge Moos, Mark R. Whitmore, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Children's Health Care)

Mary H. Alcorn, Jean B. Rudolph, Geraghty, O'Loughlin & Kenney, 1400 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Abbott Northwestern Hospital)

Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.



Appellants Shirley Porter, individually and on behalf of her minor son, Calvin J. Worthen, and Harold Porter challenge summary judgments in favor of respondents Children's Health Care-Minneapolis, Abbott-Northwestern Hospital, and various employees of those respective hospitals. Appellants contend that there exist genuine issues of material fact as to their claims of negligence, discrimination, and defamation. They also contend that the trial court erred in ruling that their expert affidavit failed to comply with Minn. Stat. § 145.682 (1998). We affirm.


At approximately 2:30 in the morning on January 13, 1997, 17-year-old Calvin Worthen suffered an asthma attack at his home. Viewing Calvin's condition to be a medical emergency, Shirley Porter, his mother, and Harold Porter, his brother, decided to drive him to Children's Health Care. Calvin had been asthmatic since age five and Shirley Porter had brought him to Children's several times previously for care and treatment.

By the time they arrived at the hospital, Calvin had stopped breathing and was unconscious. The Porters were distraught. They parked near the emergency entrance and decided to carry Calvin inside. When they discovered that they were unable to carry him, they laid him on the sidewalk next to the car, and Harold Porter ran to the emergency room door to get help.

The sliding glass doors to the emergency room were locked. It had been Children's policy for many years to lock the doors at night for security. Patients and visitors could gain entrance by communicating with hospital or security staff through a telephone near the entrance.

Harold Porter could see hospital personnel inside the emergency room and he pounded on the glass door and yelled to get their attention. One employee gestured to Mr. Porter to pick up the telephone. He did not do so but rather kicked and pounded on the door and yelled profanities. The staff could not see Calvin on the sidewalk. They could see that Mr. Porter had no child with him and were unable to decipher what he wanted. They became alarmed and called security. Mr. Porter contends that the nurse who made the call identified him as an angry and hysterical black man.

Unable to gain admission to the emergency room, Mr. Porter returned to the car. Shirley Porter then went to the glass doors. One of the nurses recognized her and opened the doors. The nurse then carried Calvin into the hospital where he was revived and successfully treated. The incident outside the emergency room lasted approximately five minutes.

While Calvin and his mother and brother were inside the hospital, security officers arrived in response to the nurse's call. They asked if they could help. Mr. Porter was still very upset and he loudly complained about the entry delay.

Both officers prepared confidential informational reports. Each included in his report a notation that there was a brown Oldsmobile Cutlass automobile parked in the ambulance bay area. One officer reported seeing "a glass smoking pipe with white residue stuck to it and a wooden smoking pipe" in the front seat area of the car. The other officer reported seeing "drug paraphernalia" in the car. Neither report named Calvin or the Porters, but both noted that a male drove the car out of the ambulance bay area and parked it on the street.

Appellants, who are African-Americans, contend that Children's and its employees engaged in racial discrimination by denying to them immediate emergency room access. They assert that Children's and Abbott-Northwestern were negligent in locking the emergency room door and were negligent in the supervision of their respective employees. Finally, Harold Porter alleges that the security officers defamed him in their reports by stating that there was drug paraphernalia in the Oldsmobile.

The trial court granted summary judgments dismissing all claims. Specifically, the trial court ruled that appellants failed to comply with the affidavit requirement of Minn. Stat. § 145.682 (1998) as to the hospital negligence claim; failed to produce facts supporting their claim of racial discrimination; and failed to demonstrate the existence of genuine fact issues as to Calvin's damage claim and the defamation and negligent supervision claims.


This appeal is taken from summary judgments dismissing appellants' claims. On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact for trial and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We review purely legal issues de novo. Almor Corp. v. County of Hennepin, 566 N.W.2d 696, 700 (Minn. 1997).

Negligence Claims

The three appellants allege that they "suffered emotional distress, mental anguish, and humiliation and embarrassment" as a result of respondents' various negligent acts or omissions. There is a dispute as to whether the alleged negligence is properly to be characterized as "professional" or "ordinary." Appellants contend that their claims are premised on a theory of ordinary negligence. Respondents and the trial court appear to disagree. We hold that the negligence claims are not sustainable under either characterization.

Broadly, appellants allege that Children's and Abbott-Northwestern negligently prevented immediate and unrestrained emergency access to a patient in need of medical care and that the patient and his relatives suffered damages as a result.

Under Minnesota law, anyone who brings a medical negligence action against a hospital must file an "affidavit of expert review" as a precondition to the continued maintenance of the action. Minn. Stat. § 145.682, subds. 1, 2 and 3 (1998). That affidavit must, among other things, set forth an expert opinion that "one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff * * *." Minn. Stat. § 145.682, subd. 3(a) (1998). The penalty for failure to supply the affidavit within the prescribed time limit is mandatory dismissal with prejudice of "each cause of action as to which expert testimony is necessary to establish a prima facie case." Minn. Stat. § 145.682, subd. 6 (1998).

Appellants' claims of negligence are based on allegations that the hospitals violated standards requiring unfettered access to emergency medical care and that the hospitals negligently failed to supervise their employees to ensure compliance with the standards. Such allegations carry the case beyond the general and ordinary standards of care applicable to everyone in general and into the realm of professional duties pertaining to a hospital's conduct in facilitating and delivering emergency medical care to patients. It is not error, therefore, to characterize appellants' claims as professional negligence claims and to require, as the trial court did here, compliance with the "affidavit of expert review" statute.

Appellants submitted the affidavit of James L. Massey. His affidavit discloses that he has a Master of Public Administration degree in the discipline of Hospital Administration and that he is a university professor. He gives his opinion that Children's placement of "treatment barriers" between the emergency room and Calvin "needlessly delayed assessment of the patient" and thereby breached a hospital emergency room standard of care that requires "immediate and unrestricted access" for patients.

Assuming that the affidavit otherwise complies with the statute, it is fatally defective in two aspects. First, it fails to provide an opinion that Children's deviation from the purported standard of care caused injury to Calvin or to the Porters. Second, the affidavit fails to show that an individual with a degree in hospital administration is qualified to give an expert opinion that the alleged violation of the standard caused or contributed to physical or psychological injury. See Minn. Stat. § 145.682, subd. 3(a) (expert's qualifications must provide a reasonable expectation that his opinion would be admissible at trial); Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 556 (Minn. 1996) (affidavit of expert review is insufficient if it fails to outline chain of causation between alleged violation and claimed damages). Because the affidavit of expert review was insufficient as a matter of law, the trial court was required to dismiss the negligence claims. There was no error.

Even if we characterize the claims as alleging only ordinary negligence, they are not sustainable. As to Calvin's damages for "emotional distress, mental anguish, humiliation and embarrassment," there is no genuine fact issue. During the brief span of the emergency access incident, Calvin was unconscious. He was unaware of any difficulty or delay in obtaining access to medical care for him. If he suffers from humiliation and embarrassment, his condition is a result of a subsequent telling of a version of the facts and not a consequence of the incident itself. Further, there is no evidence that the brief delay in getting Calvin into the hospital in any way aggravated his asthma.

As to the Porters, a factual distinction must be made. It is undisputed that Shirley Porter was given prompt access to the emergency area when she appeared at the glass doors. Thus, there is no factual basis whatsoever for any claim that respondents denied access as to her. Only Harold Porter, who appeared at the doors between 2:30 a.m. and 3:00 a.m., without a child, and in a physically and verbally agitated state, was denied immediate admission to the interior of the hospital. He has, however, failed to point to any facts or law showing that, under these unique circumstances, he was entitled to immediate access to the hospital. Without such a showing, there can be no predicate for his negligence claim.

The claims of both Porters fail on the issues of duty and damages. Whether a duty exists is a question of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). As a general rule, a person does not have a duty to give aid and protection to another, even if it is evident that such protection is necessary. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979). There is an exception to this general rule, however, if a special relationship exists between the parties and it is foreseeable that harm will result if the protection is not given. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989). The relationship of hospital and patient comes within the exception. Donaldson v. YWCA, 539 N.W.2d 789, 792 (Minn. 1995). The Porters were not patients of either hospital and, thus, no duty arose respecting them individually. To the extent that one might argue that they were acting as "agents" for an unconscious patient, the facts are undisputed that as soon as the "agency" became evident to Children's, the hospital acted promptly to render care to the patient. The trial court held that the hospitals owed no duty to the Porters. This was not error.

Finally, the Porters have failed to show that they are legally entitled to damages. They allege that they suffered emotional distress and related emotional injuries. In Minnesota, one who alleges emotional injuries as the result of another's negligence can recover damages only if he or she has suffered a physical injury or develops physical symptoms as a result of direct exposure to physical harm. Langeland v. Farmers State Bank of Trimont, 319 N.W.2d 26, 31 (Minn. 1982) (plaintiff who suffers physical injury from another's negligence may also recover for accompanying mental anguish); K.A.C. v. Benson, 527 N.W.2d 553, 559 (Minn. 1995) (a plaintiff may recover as a result of negligent infliction of emotional distress if physical symptoms arise after exposure to "zone of danger").

Appellants have offered no evidence of physical harm or of physical exposure to a zone of danger. Mere allegations of emotional distress are insufficient to create a fact issue on whether appellants suffered physical harm or physical symptoms. See Minn. R. Civ. P. 56.05 (stating nonmoving party may not rest on pleading averments or denials, but must present specific facts showing genuine issue for trial).

Racial Discrimination Claims

Appellants argue that their access to Children's emergency room was delayed because of the color of their skin. They base their claim on Minn. Stat. § 363.03, subd. 3(a)(1) (1996). Section 363.03 applies to unfair discriminatory practices; subd. 3 applies to public accommodations and provides:

Subd. 3. Public accommodations. (a) It is an unfair discriminatory practice:

(1) to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin, marital status, sexual orientation, or sex.

Claims of discrimination in public accommodations under the Minnesota Human Rights Act are subject to the test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). McDonnell Douglas dealt specifically with a "disparate treatment" claim in a racial discrimination action brought under Title VIII of the Civil Rights Acts of 1964, 42 U.S.C. 2000e, et seq. (1982). In Danz v. Jones, 263 N.W.2d 395 (Minn. 1978), the supreme court adopted this analysis for disparate treatment claims brought under the Minnesota Human Rights Act. See also Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428 (Minn. 1983); Kaster v. Independent Sch. Dist. No. 625, 284 N.W.2d 362 (Minn. 1979).

To prove a claim of disparate treatment, "proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of difference in treatment." Hubbard, 330 N.W.2d at 441 n.12 (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S. Ct. 1843, 1854 n. 15 (1977). See also Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 425 N.W.2d 235, 239 n. 1 (Minn. 1988). The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains with the plaintiff. Hubbard, 330 N.W.2d at 441-42 n. 12 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093 (1981)).

The test under McDonnell Douglas requires the plaintiff to make a prima facie showing that (1) the plaintiff is a member of a protected class, (2) the plaintiff was denied the services of a public accommodation which were available to others outside the protected class, and (3) sufficient direct and indirect circumstantial evidence exist for a nexus or causal contention between the protected class and the disparate treatment. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.

If the plaintiff fails to establish that a genuine issue of material fact exists as to any essential element of the prima facie case, summary judgment is appropriate. Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762 (8th Cir. 1995).

Again, it is important to note that neither Shirley Porter nor Calvin was denied access to the hospital. The discrimination claim could refer only to Harold Porter, and he fails to establish the existence of any genuine issues of material fact. While he satisfies the first requirement under McDonnell Douglas, he does not provide any evidence demonstrating that others outside the protected class would not have experienced the same or similar delay. Although he claims that a childless white woman was allowed immediate access, no other information relating to that woman is available. We do not know whether she was an employee of the hospital, the parent of a patient, or was otherwise familiar to hospital staff. Shirley Porter was a childless African-American woman when she first appeared at the doors, yet she was given prompt access because a nurse recognized her as the parent of a patient.

Furthermore, Harold Porter fails to offer evidence establishing a nexus between his protected class membership and the alleged disparate treatment. He alleges that an employee used a hostile tone of voice in communicating with him and that another employee's description to security that "an angry black man was banging on the door" provides sufficient direct and circumstantial evidence of disparate treatment. His argument is unpersuasive. He fails to present any evidence that he was treated differently from anyone else using Children's services at that time and under those circumstances. Because appellants were unable to make a prima facie showing of the existence of a genuine fact issue as to the discrimination claim, the trial court did not err in granting summary judgment.

Defamation Claim

Harold Porter contends that the security guards defamed him by including in their reports references to drug paraphernalia in the Oldsmobile. He alleges that, as a result, he has "suffered injuries in the form of damage to his reputation and character, loss of self-esteem, emotional distress, and embarrassment."

The trial court ruled that the statements did not identify Harold Porter; that the reports were qualifiedly privileged; and that Harold Porter failed to show falsity or malice.

An essential element of any defamation claim is that the defamatory statement refer to the plaintiff. Restatement (Second) of Torts § 564 (1977). In a defamation action, the jury "must determine that the alleged defamatory statement could be understood to refer to the plaintiff." Covey v. Detroit Lakes Printing Co., a Div. of Forum Publ'g Co., 490 N.W.2d 138, 143 (Minn. App. 1992).

The alleged defamatory statements were contained in two separate reports written by two security officers. One report refers to a glass pipe with white residue and the other to drug paraphernalia located in the front passenger compartment of a brown Olds Cutlass. Neither report describes the car further. One report refers to a black male, whose brother was a patient in the hospital, moving the car onto the street. The other report describes this person as a "male party." His name is not given. He is not described by height, weight, features, hairstyle, or clothing. His brother's name is not mentioned. He is not identified as owner of the car or as owner of the allegedly illicit items. There is nothing in either report from which the reasonable person could identify Harold Porter or anyone else as the subject. The trial court did not err in ruling that there existed no genuine fact issue on this essential element of Harold Porter's defamation claim.