This opinion will be unpublished and

may not be cited except as provided by

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




Inez Hunter,



HealthPartners, Inc., et al.,


Filed February 23, 1999


Halbrooks, Judge

Hennepin County District Court

File No. CT981404

Jesse Gant, III, Gant Law Office, 670N Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (attorney for appellant)

Gregory P. Bulinski, Charles E. Lundberg, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South 6th Street, Minneapolis, MN 55402 (attorney for respondent)

Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Willis, Judge.



Appellant Inez Hunter challenges the district court's grant of summary judgment in her medical malpractice action. Because we find there are no genuine issues of material fact and the district court did not err in its application of the law, we affirm.


Inez Hunter began her employment with respondent, HealthPartners, Inc. (HealthPartners) in 1984. She resigned from her position in the claims department on July 1, 1997. While employed by HealthPartners, Hunter received psychiatric care from respondent, Kevin Kavaney, M.D., who was also an employee of HealthPartners.

On October 13, 1988, Hunter was attending a benefits class at HealthPartners when Kathy Arndt, a co-employee, asked Hunter to leave the room. Outside the room, Arndt told Hunter that Kavaney wanted to see her and accompanied Hunter to Kavaney's office. Kavaney relayed to Hunter that Hunter's supervisor had told him Hunter was acting "bizarre." Kavaney then gave Hunter three days off from work.

In the "plan" sections of his notes regarding his meeting with Hunter, Kavaney wrote:

P: Patient will restart her Loxitane 10 mg. at hs and she will take off on a medical leave until Monday. If all looks well on Mon., she'll reattempt employment. If not, she will contact me and we may need to extend her medical leave beyond that. I will contact her immediate supervisor, Kathy Arndt,[1] to relay this plan.

Hunter contends these statements indicate Kavaney violated the patient-physician privilege by disclosing confidential information about Hunter's plan of treatment to Hunter's supervisor and co-employees without Hunter's consent.[2] In an affidavit in support of his summary judgment motion, Kavaney denied he disclosed any confidential information regarding Hunter's medical condition. He contends the only information he conveyed was that Hunter would be off work for a period of time.

In the course of a separate federal district court action against HealthPartners, Hunter requested a copy of her psychiatric file. Upon review of the records, Hunter's attorney noticed Kavaney had diagnosed Hunter with paranoid schizophrenia. He brought this information to Hunter's attention in March 1996. Hunter asserts this is the first time she was aware of Kavaney's diagnosis.

After further review of her medical records, Hunter saw the notation regarding Kavaney's communication with her supervisor and co-worker. She contends knowledge of Kavaney's alleged disclosure made her physically ill and caused a regression of her emotional problems.

On July 1, 1997, Hunter settled her federal district court suit against HealthPartners. In the settlement agreement, Hunter dismissed her complaint and released HealthPartners and all its employees "individually and in their representative capacities" from any claims she might have against them through the date of the settlement agreement. The settlement agreement specifically excepted "any claim for damages which may be asserted arising out of the provision of health-related services to Hunter on or about [October 13, 1988].[3]"

On January 27, 1998, Hunter filed suit against respondents in Hennepin County District Court claiming violation of her privacy and the Minnesota Patients' Bill of Rights, Minn. Stat. § 144.651 (1996). She also alleged respondent Kavaney committed medical malpractice by disclosing her mental health records to her co-employees without her consent and by failing to disclose his diagnosis of paranoid schizophrenia to her.

Respondents moved for summary judgment and the district court granted their motion. The court found: (1) appellant provided no facts, outside her complaint, supporting her allegation that respondent Kavaney disclosed her mental health records without her consent; (2) the Minnesota Patients' Bill of Rights does not create a private cause of action; and (3) appellant's claim that respondent Kavaney breached the applicable standard of care when he did not advise appellant of his diagnosis of paranoid schizophrenia was barred by the settlement agreement executed on July 1, 1997.

On appeal, Hunter claims Kavaney's notes and her expert witness's interpretation of Kavaney's notes create a factual dispute regarding whether Kavaney disclosed confidential information from Hunter's medical records without her consent. Hunter also contends the Minnesota Patients' Bill of Rights creates a private cause of action and the district court erred in finding her claim of medical malpractice, based on respondents' failure to disclose her diagnosis, was barred by the parties' July 1, 1997 settlement agreement.


On appeal from summary judgment, this court determines whether there are any genuine issues of material fact 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); see Minn. R. Civ. P. 56.03 (setting forth court's standard for summary judgment). This court views the evidence in the light most favorable to the party opposing the motion. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986). The burden is on the moving party to show the absence of any material fact. Minn. R. Civ. P. 56.03; Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 215 (Minn. 1985). Once the movant has supported the motion, however, the non-moving party must show that a material issue of fact remains in dispute by presenting specific admissible facts giving rise to a factual question. Bixler, 376 N.W.2d at 215 (citing Continental Sales & Equip. Co. v. Town of Stuntz, 257 N.W.2d 546, 550 (Minn. 1977)). The non-moving party may not rely upon general statements of facts contained in the pleadings, but rather must demonstrate at the time the motion is made that there are specific facts that create a genuine issue for trial. Hunt, 384 N.W.2d at 855; Fownes v. Hubbard Broadcasting, Inc., 302 Minn. 471, 474, 225 N.W.2d 534, 536 (1975).

Physician-Patient Privilege

Hunter contends summary judgment on the breach of physician-patient privilege issue was inappropriate for two reasons. First, Hunter believes the affidavit of her expert witness, psychiatrist Donald W. Verin, M.D., interpreting Kavaney's October 13, 1988 note to mean Kavaney disclosed confidential information, created a fact issue, and the district court abused its discretion by excluding the affidavit. Second, Hunter asserts Kavaney's October 13, 1988 note alone is evidence of Kavaney's disclosure of information.

Expert witness

Hunter's expert witness offered the opinion that the reference in Kavaney's notes about relaying "the plan" to Hunter's supervisor indicated Kavaney was going to disclose his plan of treatment for Hunter. The district court found expert opinion was unnecessary to interpret Kavaney's notes. The court held the language in the note was not highly technical or esoteric medical language and a jury would be equally capable of determining the meaning of Kavaney's notes.

The competence of a witness to testify on a particular matter is a question of fact distinctly within the province of the trial judge. Benson v. Northern Gopher Enterprises, Inc., 455 N.W.2d 444, 445-46 (Minn. 1990); Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977). This court will not reverse the ruling unless it is based on an erroneous view of the law or clearly not justified by the evidence. Id.

The admissibility of expert opinion testimony is governed by Minn. R. Evid. 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The guiding principle for determining the admissibility of an expert witness's testimony under this rule is whether the expert's opinion would assist the trier of fact in formulating a correct resolution of the issue. Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 143 (Minn. App. 1992); Orwick v. Belshan, 304 Minn. 338, 346, 231 N.W.2d 90, 95-96 (1975).

Verin's opinion interpreted the word "plan" in the context of Kavaney's notes. Although Hunter argues "plan" is a medical term of art, it is not the type of term which requires scientific, technical, or specialized knowledge to understand. The district court did not abuse its discretion in finding a jury would be as capable as Verin of interpreting Kavaney's reference to "the plan," and Verin's opinion would not necessarily assist the trier of fact in resolving the meaning of Kavaney's note.

Dr. Kavaney's notes

Hunter contends Kavaney's notes themselves demonstrate a disclosure of privileged information. Kavaney alleges in his affidavit that he did not disclose this information. In response, Hunter contends Kavaney's affidavit is not credible and is belied by the language in Kavaney's own notes. We must, therefore, determine whether respondents met their burden of showing an absence of any material fact and, if so, whether Hunter responded with specific facts showing a genuine issue for trial.

Kavaney's affidavit is sufficient to overcome respondents' initial burden of proving the absence of any material fact. In his affidavit, Kavaney stated he only communicated that Hunter would be taking some time off.

The burden, therefore, shifts to Hunter to show a material issue of fact remains in dispute. Hunter has failed to meet this burden. Other than Kavaney's notes and her expert's interpretation of those notes, Hunter provided no evidence impugning Kavaney's affidavit or indicating privileged information was disclosed. She did not depose any of the parties to whom confidential information was allegedly revealed or provide affidavits from these individuals. Her assertion that Kavaney's affidavit is not credible is insufficient on its own, and her interpretation of Kavaney's notes merely reiterates the allegations in her pleadings. See Bixler, 376 N.W.2d at 216 (stating "[a] simple assertion that an affiant's statements may be disbelieved * * * is insufficient to defeat a motion for summary judgment.").

Accordingly, the district court properly concluded there were no material issues of fact for trial.

c. Insufficient opportunity for discovery

On appeal to this court, Hunter alleges she was deprived of the opportunity to depose the individuals to whom Kavaney allegedly disclosed privileged information about Hunter. A review of the record reveals Hunter's attorney did not present this argument to the district court.

We will generally not consider matters not argued and considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Under the circumstances of the present case, we conclude it is inappropriate to consider Hunter's claim of insufficient opportunity for discovery.

Minnesota Patients' Bill of Rights

Hunter contends Kavaney violated Minn. Stat. § 144.651, subd. 16 (1996) of the Minnesota Patients' Bill of Rights by revealing her confidential medical records without her permission. Section 144.651, subd. 16 provides:

Patients and residents shall be assured confidential treatment of their personal and medical records, and may approve or refuse their release to any individual outside the facility.

The district court determined the Minnesota Patients' Bill of Rights does not create a private cause of action and dismissed Hunter's claim. Because we have already determined there is no evidence Kavaney violated the confidentiality of Hunter's medical records, we need not consider what remedies are available under the Patients' Bill of Rights.

Kavaney's oral disclosure that Hunter would be off work for three days does not involve "medical records" and is not covered by section 144.651, subd. 16. See Koudsi v. Hennepin County Med. Ctr., 317 N.W.2d 705 (Minn. 1982) (holding oral disclosure of information concerning a patient's discharge and the fact that she had given birth did not involve "medical records" within the meaning of the Patients' Bill of Rights).

3. Release

Hunter contends her medical malpractice claim against Kavaney for failure to disclose her diagnosis is not within the scope of the release executed by the parties on July 1, 1997. Specifically, she claims the exclusionary language, "This release does not include any claim for damages which may be asserted arising out of the provision of health-related services to Hunter on or about [October 13, 1988]," encompasses her claim that Kavaney failed to disclose her diagnosis. We disagree.

The terms of the exclusion are clear. They exempt from the release only claims arising out of health-related services provided on or about October 13, 1988. Hunter was aware of all the facts composing her cause of action before she signed the release. Her attorney reviewed her medical records in March 1996 and informed her of Kavaney's diagnosis at that time. She did not sign the release until July 1997. Her claim, therefore, was in existence at the time she signed the release, and she knew or should have known of it. Hunter's specific reference to October 13, 1988 (the date on which her disclosure of confidential information claim allegedly occurred) implies an intent to exclude her claim for failure to disclose her diagnosis. See Weber v. Sentry Ins. Co., 442 N.W.2d 164, 167 (Minn. App. 1989) (stating "[T]he expression of specific things in a contract implies the exclusion of all not expressed."). We conclude the district court properly determined Hunter's claim of failure to disclose her diagnosis is barred by the release.

Hunter also asserts that Kavaney, in his role as her psychiatrist, was not an intended party to the release despite his employee status. This argument was not raised before the district court and will not be considered by this court on appeal. Thiele, 425 N.W.2d at 582.


[1] At the time Kavaney wrote this note, he mistakenly believed Arndt was Kavaney's supervisor.

[2] Hunter contends three notes in her medical file indicate Kavaney violated the patient-physician privilege by disclosing confidential information about Hunter's diagnosis to her co-employees. Because we have determined Hunter released all claims against respondents other than those "arising out of the provision of health-related services to Hunter on or about September 20, 1988," we do not consider the August 5, 1987 and January 1989 notes.

[3] Although the actual date excepted from the terms of the settlement agreement is September 20, 1988, the date intended by the appellant was October 13, 1988. For purposes of the summary judgment motion and this appeal, respondents stipulate that the settlement agreement intended to refer to October 13, 1988.