Ragnhild Anne Westby, Westby, Chester & Lees, P.A., Commodore Hotel, 79 Western Ave. N., Suite C, St. Paul, MN 55102 (for Appellant)

Pat Skoglund, Jane Lanoue Binzak, Katherine E. Kennedy, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar St., St. Paul, MN 55101-2160 (for Respondent St. Paul Ramsey Medical Center)

James C. Skoog, 2599 Mississippi St., New Brighton, MN 55112 (for Respondent Larmore)

Considered and decided by Davies, Presiding Judge, Huspeni, Judge, and Short, Judge.

Appellant, on numerous grounds, challenges the district court's dismissal of his lawsuit, which alleges improper disclosure of confidential medical information. We affirm.

Sometime in either July or August 1995, appellant encountered respondent Linda Larmore, who was then employed as a ward secretary for respondent St. Paul Ramsey Medical Center (Ramsey). At some point after that encounter, Linda Larmore accessed appellant's medical records, which included his HIV diagnosis.

Linda Larmore subsequently and incorrectly told James Larmore, her former husband, that appellant had been diagnosed as having AIDS, rather than as HIV-positive. James told his new wife, who in turn told appellant's 14-year-old niece.

Appellant sued both Ramsey and Linda Larmore, alleging violations of the "medical data" portion of the Minnesota Government Data Practices Act, Minn. Stat. § 13.42, subd. 3, and the Minnesota Patients Bill of Rights, Minn. Stat. § 144.651-.6581. He also claimed slander per se.

Ramsey moved for dismissal of all counts on the ground that the complaint failed to state a claim for which relief can be granted under Minn. R. Civ. P. 12.02(e).[1] In his responsive memorandum, appellant acknowledged that he was essentially abandoning the slander claim, at least pending further discovery. Appellant also agreed that the count alleging violation of the Data Practices Act had to be dismissed because Ramsey was no longer a public benefit corporation. Thus, the only contested issue confronting the district court was whether the Patients Bill of Rights creates an implied private cause of action for damages. Ruling in the negative, the district court dismissed the complaint against Ramsey in its entirety.

Appellant challenges this ruling. In addition, appellant asks this court to consider whether the Data Practices Act violates his right to equal protection and whether the Patients Bill of Rights created an implied contract between himself and Ramsey.

Respondent raises a timeliness issue because appellant's notice of appeal mistakenly states that it is taken from an "order." Under Minn. R. Civ. App. P. 104.01, orders must be appealed within 30 days.

We are unpersuaded by respondent's argument. We have here a clerical error. "[N]otices of appeal are to be liberally construed in favor of their sufficiency," and a clerical error that is not misleading will not make the notice insufficient. Kelly v. Kelly, 371 N.W.2d 193, 195-96 (Minn. 1985). The notice of appeal states that it is "from an Order of the Court filed on the date shown," but the date shown in the heading of the notice is March 15, 1996, the date of entry of the judgment, not of the order. Further, appellant's statement of the case, filed the same day as the notice, indicates in its jurisdictional statement that the appeal is from the March 15 judgment. Finally, appellant filed an "amended" notice of appeal on June 19, correcting the error.[2] We do not believe that respondent can seriously contend that it was in any way misled about the appeal. We therefore reach the merits of the case.

In his memorandum responding to the motion to dismiss, appellant conceded that his claim based on the Data Practices Act "must be dismissed." The district court therefore did not address that claim. In the district court, appellant also did not argue that respondent created an implied contract by giving the Patients Bill of Rights to him. We therefore will not consider either of these issues on appeal.

Appellant cites Robbinsdale Clinic v. Pro-Life Action Ministries, 515 N.W.2d 88, 90 (Minn. App. 1994), review denied (Minn. June 15, 1994), for the proposition that where the record is clear and judicial economy concerns would favor appellate resolution of an issue not litigated below, the appellate court may do so. This case does not present such circumstances. Appellant has simply added, on appeal, new claims or new theories of claims, with no justification as to why they were not raised below.

Statutory interpretation is a question of law that the panel reviews de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Three factors should be considered when determining whether a statute implies a private cause of action:

(1) whether the plaintiff belongs to the class for whose benefit the statute was enacted;

(2) whether the legislature indicated an intent to create or deny a remedy; and

(3) whether implying a remedy would be consistent with the underlying purposes of the legislative enactment.

Flour Exchange Bldg. Corp. v. State, 524 N.W.2d 496, 499 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).

We agree that appellant belongs to the group the Patients Bill of Rights, Minn. Stat. § 144.651-.6581 (1996), was enacted to benefit. But neither of the other two factors allowing implication of a private cause of action is met here.

Minn. Stat. § 144.651, subd. 20, sets forth a grievance procedure for alleged violations of the statute and the statute expressly provides that it "shall not preclude, diminish, enlarge, or otherwise alter [a] private action." Minn. Stat. § 144.652, subd. 2. Further, Minn. Stat. § 144.653, subds. 1 and 5, seem to give exclusive authority for enforcement of the Patients Bill of Rights to the state commissioner of health.

Appellant's claim appears to be in the nature of a claim for invasion of privacy. This state does not recognize that tort. Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 405-06 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995).

The statute does not indicate an intent to create a private remedy, nor would such a remedy be consistent with the statute's underlying purposes. We therefore affirm the district court.

Affirmed.

[ ]¹ Linda Larmore remains a named party. The district court order at issue deals only with respondent St. Paul Ramsey Medical Center's motion to dismiss.

[ ]² Our civil procedure rules do not technically allow for such an amendment. Lehman v. Terry, 424 N.W.2d 584, 585 (Minn. App. 1988). Further, the amended notice would be beyond the 90-day period allowed for filing. Nonetheless, we believe that this attempt to amend, made within days of the mistaken filing, demonstrates the clerical nature of the mistake and the lack of any prejudice to respondent.

[ ]³ No court has ruled on this issue. A concurring judge in Stubbs v. North Mem'l Med. Ctr., 448 N.W.2d 78, 83 (Minn. App. 1989) (Forsberg, J., concurring), review denied (Minn. Jan. 12, 1990), indicated that he would hold that the statute does not imply a private cause of action. The majority declined to reach the issue. Id. at 82 n.1.