STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1178

Raymond L. Semler,

Appellant,

vs.

Donna Finch,

Respondent.

Filed July 10, 2007

Affirmed

Ross, Judge

Nicollet County District Court

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)

Considered and 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

ROSS, Judge

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.

FACTS

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 Staphylococcus aureus.

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.

Semler alleged 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. 2003). 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. 14, 1995).

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. ง 144.651, subd. 1 (2006). It establishes a grievance procedure for complaints. Id., 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. ง 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. งง 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. ง 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. งง 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. ง 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 entirety.

Affirmed.