This opinion will be unpublished and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

A06-1169

 

Jane Doe,

Appellant,

 

vs.

 

HealthPartners, Inc., et al.,

Respondents,

 

SAM Ventures, Inc.,

d/b/a The Imperial Room, et al.,

Defendants.

 

Filed May 15, 2007

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 27-CV-05-007576

 

Keith D. Johnson, Keith D. Johnson, P.L.L.C., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

 

Richard J. Thomas, Chad J. Hintz, Burke & Thomas, P.L.L.P., 3900 Northwoods Drive, Suite 200, St. Paul, MN 55112 (for respondents)

 

            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Jane Doe challenges the district court’s dismissal of her medical negligence and conversion claims for failure to state a claim upon which relief can be granted, arguing that (1) she has a property interest in her lost urine sample sufficient to support a conversion claim; and (2) the loss of her urine sample deprived her of her right to pursue criminal justice.  We affirm.

D E C I S I O N

            Appellant alleges that she was sexually assaulted by an acquaintance and that the sexual assault was facilitated by the use of a “date rape” drug.  The morning after the alleged sexual assault, appellant went to respondent Regions Hospital where she reported the assault.  An employee of respondent collected a urine sample from appellant for the purpose of administering a drug-facilitated rape-drug screen, but prior to obtaining test results, the urine sample was lost.  Appellant also reported the sexual assault to the St. Paul Police Department.

            Appellant brought suit against respondent, alleging medical negligence and conversion.  The district court dismissed appellant’s claims for failure to state a claim on which relief can be granted under Minn. R. Civ. P. 12.02(e) because (1) Minnesota does not recognize a property right in urine; (2) appellant gave her urine voluntarily without an expectation of its return; and (3) the victim of a crime does not have the right or authority to initiate or prosecute criminal proceedings.

            We review de novo a district court’s decision on a motion to dismiss for failure to state a claim, and the question before us is whether the complaint sets forth a legally sufficient claim for relief.  Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).  “The reviewing court must consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party.”  Id.

I.

            Appellant argues that she has a property interest in her urine sample and that this interest provides her with a basis “to exercise ongoing control over the use of the urine sample” by respondent.  By failing to produce the test results from the sample, appellant argues that respondent is liable for conversion of the urine sample.  We disagree.

            “Conversion occurs when a person willfully interferes with the personal property of another without lawful justification that deprives the lawful possessor of use and possession.”  Indep. Sch. Dist. No. 404 v. Castor, 670 N.W.2d 758, 766 (Minn. App. 2003).

To constitute conversion, there must be an execution of dominion over the goods which is inconsistent with and in repudiation of the owner’s right to the goods or some act done which destroys or changes their character or deprives the owner of possession permanently or for an indefinite length of time.

 

Bloomquist v. First Nat’l Bank, 378 N.W.2d 81, 86 (Minn. App. 1985) (quotation omitted), review denied (Minn. Jan. 31, 1986). 

            We need not address the district court’s determination that under Minnesota law appellant has no property right in her urine, because even if we were to assume that appellant had a property interest in her urine sample, the conversion claim fails because appellant did not expect to retain possession of her urine following testing by respondent.  See, e.g., Moore v. Regents of the Univ. of Calif., 793 P.2d 479, 488-89 (Cal. 1990) (holding that a patient whose cells were removed from his body failed to state a claim for conversion because he “did not expect to retain possession of his cells following their removal”).  Appellant had no expectation that her urine sample would be returned.  Although appellant did expect to receive test results based on the urine sample she gave to respondent, appellant does not have a property interest in such test results because they are the product of respondent’s labor and expertise.   

            We conclude that the district court did not err by dismissing appellant’s conversion claim.

II.

            Appellant argues that the district court erred in dismissing her medical malpractice claim because respondent’s negligent loss of appellant’s urine sample harmed appellant by eliminating her “right” to pursue criminal justice.  We disagree because private citizens do not possess a right to pursue criminal charges.

            To establish a prima facie case of medical malpractice, a plaintiff must introduce expert testimony demonstrating “(1) the standard of care recognized by the medical community as applicable to the particular defendant’s conduct, (2) that the defendant in fact departed from that standard, and (3) that the defendant’s departure was a direct cause of [the plaintiff’s] injuries.”  Plutshack v. Univ. of Minn. Hosps., 316 N.W.2d 1, 5 (Minn. 1982).

            Because appellant fails to show that respondent’s actions resulted in cognizable injury, she fails to make a showing of the third factor required to sustain her claim.  Appellant fails to make the showing because she fails to cite any authority for the proposition that she has a right, as a private citizen, to pursue criminal justice.  Rather, the attorney general, county attorney, and city attorney are responsible for prosecuting all crimes in Minnesota.  See Minn. Stat. § 8.01 (2006) (attorney general); Minn. Stat. § 388.051, subd. 1 (2006) (county attorney); Minn. Stat. § 484.87 (2006) (city attorney).  Because appellant does not possess a legal right to pursue a criminal prosecution, the loss of such prosecution does not result in a cognizable injury and therefore does not support a claim for medical negligence.  We conclude that the district court did not err in dismissing appellant’s claim for medical negligence.

            Affirmed.