                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0896

                                     Anita J. Howard,
                                      Respondent,

                                            vs.

                             Shelly R. Svoboda, M.D., et al.,
                                       Appellants.

                                  Filed March 7, 2016
                                        Reversed
                                      Reyes, Judge

                             Hennepin County District Court
                                File No. 27CV1420381

Richard E. Bosse, Law Office of Richard E. Bosse, Chtd., Henning, Minnesota (for
respondent)

Paul C. Peterson, William L. Davidson, Amber N. Garry, João C. Medeiros, Lind, Jensen,
Sullivan & Peterson, P.A., Minneapolis, Minnesota (for appellants)

       Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Klaphake,

Judge.

                                    SYLLABUS

       Under Minn. Stat. § 595.02, subd. 5 (2014), an “informal discussion” with a

treating physician who has examined or cared for a party allows inquiry into “any

information or opinion” the physician possesses, including opinions on the standard of

care and causation relating to periods when the physician was not caring for the patient.




 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                                      OPINION

REYES, Judge

       This appeal arises out of a medical-malpractice suit and a district court protective

order limiting the scope of an “informal discussion” with a treating physician authorized

under Minn. Stat. § 595.02, subd. 5. Appellants challenge the order, arguing that the

district court erred in interpreting the statute to prevent them from asking about “any

information or opinion” of a surgeon who examined and cared for respondent, including

opinions he possesses on the standard of care and causation relating to periods when he

was not caring for respondent. Because we agree with appellants, we reverse the district

court’s protective order.

                                          FACTS

       In 2009, following a motor-vehicle accident and a history of back pain, respondent

Anita Howard sought treatment from appellants Dr. Shelly Svoboda and her physician

assistant, Christopher Geisler. Appellants ultimately referred respondent to neurological

surgeon Dr. Mahmoud Nagib when her back pain would not subside. Dr. Nagib

performed back surgery on respondent in August 2009 and treated her until October

2009, when he referred her back to appellants for postoperative care. Following the back

surgery, appellants treated respondent from late 2009 through 2010.

       In June 2010, respondent awoke unable to move her legs. She went to the

emergency room where “a collapse of the T5 and T6” vertebrae causing her complete

paraplegia was identified. While she was at the hospital, Dr. Nagib once again examined




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her. He concluded that the collapse occurred due to an infection and determined that

surgery to correct the paraplegia was too risky.

       In 2014, respondent sued appellants, alleging that they failed to diagnose and treat

the infection that resulted in her paraplegia. Appellants requested respondent’s

authorization for an “informal discussion”1 with Dr. Nagib pursuant to Minn. Stat.

§ 595.02, subd. 5. Initially, respondent provided a signed authorization. However, a

week before the scheduled discussion, respondent wrote to appellants stating that she

would “take issue” with any questions “as to standard of care or causation.” Appellants

responded the next day stating that they disagreed with this limitation, and, shortly

thereafter, respondent revoked her earlier authorization.

       The parties submitted cross-motions to the district court. Respondent moved for a

temporary injunction and/or a protective order to limit the scope of the informal

discussion, and appellants moved to compel respondent to sign an authorization to allow

the informal discussion. The district court held a hearing and, by order dated April 30,

2015, granted both motions in part. The district court directed respondent to sign an

authorization.2 But the district court granted a protective order to preclude appellants

              from using the informal conference under Minn. Stat. § 595.02,
              subd. 5, to request expert opinions by Dr. Nagib about (a) the
              standard of care applicable to other medical providers who
              cared for [respondent] during periods of time when
              [respondent] was not Dr. Nagib’s patient or (b) whether an
              alleged breach of the standard of care by medical providers
              other than Dr. Nagib caused injury to [respondent].

1
  An informal discussion is also commonly referred to in practice as an “informal
conference.”
2
  Respondent does not challenge this ruling by the district court on appeal.

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       This appeal follows.

                                          ISSUE

       Did the district court abuse its discretion when it issued a protective order

preventing appellants from using the informal discussion pursuant to Minn. Stat. §

595.02, subd. 5, to ask Dr. Nagib about any opinions he possessed on the standard of care

and causation relating to periods when he was not examining or caring for respondent?

                                        ANALYSIS

       Appellants contend that the district court erred in interpreting Minn. Stat.

§ 595.02, subd. 5, to prevent them from asking about “any information or opinion” of

Dr. Nagib, including opinions he possesses on the standard of care and causation relating

to periods when he was not treating respondent. Respondent contends that the district

court did not err because “[t]he plain, unambiguous language of the statute, taken in

context describes only information or opinions the doctor has acquired in attending the

patient in a professional capacity and which was necessary to enable the professional to

act in that capacity” and “[a]ny opinion outside his care is irrelevant.” (Emphasis

omitted). We agree with appellants.

       A district court has broad discretion under Minn. R. Civ. P. 26.03 “to fashion

protective orders and to order discovery only on specified terms and conditions.”

Erickson v. MacArthur, 414 N.W.2d 406, 409 (Minn. 1987). Appellate courts “review a

district court’s order for an abuse of discretion by determining whether the district court

made findings unsupported by the evidence or by improperly applying the law.” In re

Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007).


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         Statutory interpretation is a question of law subject to de novo review. State v.

Riggs, 865 N.W.2d 679, 682 (Minn. 2015). “The objective of statutory interpretation is

to ascertain and effectuate the [l]egislature’s intent. If the [l]egislature’s intent is clear

from the statute’s plain and unambiguous language, then we interpret the statute

according to its plain meaning without resorting to the canons of statutory construction.”

State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013) (citations omitted); see Minn. Stat.

§ 645.16 (2014). But if the language of the statute “is susceptible to more than one

reasonable interpretation, then the statute is ambiguous and we may consider the canons

of statutory construction to ascertain its meaning.” Id.

         Minn. Stat. § 595.02, subd. 1(d) (2014) defines the scope of the physician-patient

privilege in Minnesota. The statute, in relevant part, states:

                A licensed physician or surgeon . . . shall not, without the
                consent of the patient, be allowed to disclose any information
                or any opinion based thereon which the professional acquired
                in attending the patient in a professional capacity, and which
                was necessary to enable the professional to act in that capacity.

Minn. Stat. § 595.02, subd. 1(d). This privilege belongs to the patient and may be waived

only by the patient. Maas v. Laursen, 219 Minn. 461, 463, 18 N.W.2d 233, 234 (1945).

If a party voluntarily places his or her medical condition at issue, such as by initiating a

medical-malpractice suit as was done here, the privilege is waived. Minn. R. Civ. P.

35.03.

         In 1986, the Minnesota Legislature added subdivision 5 to Minn. Stat. § 595.02 to

allow defendants in medical-malpractice suits an opportunity to conduct informal

discussions with plaintiffs’ treating physicians. See Blohm v. Minneapolis Urological


                                                5
Surgeons, P.A., 449 N.W.2d 168, 169 (Minn. 1989). This subdivision, in relevant part,

states:

                A party who commences an action for malpractice . . . against
                a health care provider3 on the person’s own behalf . . . waives
                in that action any privilege existing under subdivision [1(d)],
                as to any information or opinion in the possession of a health
                care provider who has examined or cared for the party . . . .
                This waiver must permit all parties to the action, and their
                attorneys . . . to informally discuss the information or opinion
                with the health care provider if the provider consents. . . .
                Appropriate medical authorizations permitting discussion must
                be provided by the party commencing the action upon request
                from any other party.

Minn. Stat. § 595.02, subd. 5 (emphasis added). The purpose of this addition is “to give

defense counsel easier access to plaintiff’s treating physicians” and “to minimize the

difficulties of obtaining an interview by eliminating plaintiff’s right to veto.” Blohm, 449

N.W.2d at 169-70. The Minnesota Supreme Court has held that these discussions are not

discovery. Id. at 171.

          Both parties contend that Minn. Stat. § 595.02, subd. 5, is unambiguous. Although

they present different interpretations of the statute, we discern no ambiguity. The plain

language of Minn. Stat. § 595.02, subd. 5, waives the patient-physician privilege created

in subdivision 1(d) as to “any information or opinion in the possession of a health care

provider who has examined or cared for the party” and allows “the information or

opinion” to be “informally discuss[ed]” with any party to the action. (Emphasis added).



3
  “‘Health care provider’ means a physician, surgeon, dentist, or other health care
professional or hospital.” Minn. Stat. § 595.02, subd. 5. The supreme court has used this
term synonymously with “treating physician.” See Blohm, 449 N.W.2d at 169.

                                               6
“Possession” is defined as “the state of having or owning something.” Pocket Oxford

American Dictionary 638 (2d ed. 2008) (emphasis added). Further, the statute allows

“any information or opinion” a treating physician possesses or has to be discussed. Minn.

Stat. § 595.02, subd. 5 (emphasis added). And notably, the statute contains no temporal

limitation as to the time period to which the opinion must relate. Id. Therefore, we hold

that, if a treating physician who has examined or cared for a party possesses an opinion,

including one on the standard of care and causation relating to periods when the

physician was not caring for the party, inquiry into the opinion is allowed at the informal

discussion under Minn. Stat. § 595.02, subd. 5.

       In its protective order interpreting Minn. Stat. § 595.02, subd. 5, the district court

stated that an informal discussion “does not extend to asking a treating physician to form

and disclose opinions critiquing the medical care provided by other medical providers

during time periods when the treating physician was not caring for the [patient].”

(Emphasis added). It explained that “[s]uch inquiries do not pertain to the information

and opinions gained or formed by the treating physician during the treating relationship”

and, “[i]nstead, they seek information and opinions formed outside of the treating

relationship.” The court concluded by stating that “[s]uch opinions would more properly

fall with[in] the scope of [Minn. R. Civ. P.] 26.02(e), which governs the discovery and

presentation of evidence of expert opinions acquired or developed in anticipation of

litigation or for trial.”

       We agree with the district court that Minn. Stat. § 595.02, subd. 5, does not allow

parties to use an informal discussion to ask a treating physician to form an opinion at the


                                              7
time of the discussion. But we conclude that the statute allows a party to ask a treating

physician about an opinion the physician already possesses. Here, Dr. Nagib concluded

that the fracture occurred due to an infection. If he possesses any opinions on the

standard of care or causation, then appellants are entitled to inquire about those opinions.

See Minn. Stat. § 595.02, subd. 5. Therefore, the district court abused its discretion by

issuing a protective order preventing appellants from asking Dr. Nagib about opinions he

possesses regarding the standard of care and causation relating to periods when he was

not caring for respondent.

       Respondent argues, and the district court agreed, that allowing these types of

questions to be asked of treating physicians is detrimental to the patient-physician

relationship because it essentially turns them into “Rule 26” experts adverse to their own

patients. We are not persuaded. Informal discussions are not discovery. Blohm, 449

N.W.2d at 171. Therefore, the information obtained during the discussions is not

admissible at trial. See Minn. R. Civ. P. 26. In addition, Minn. Stat. § 595.02, subd. 5,

allows inquiry of any opinion a treating physician possesses. But nothing in the statue

requires a treating physician to form an opinion. Minn. Stat. § 595.02, subd. 5.

Moreover, Minn. Stat. § 595.02, subd. 5, mandates that “[t]he plaintiff’s attorney . . .

have the opportunity to be present at any informal discussion,” ensuring that the patient’s

interests are protected and that all parties have access to the information disclosed. Cf.

Wenninger v. Muesing, 307 Minn. 405, 411, 240 N.W.2d 333, 337 (1976) (stating that

“[t]he presence of the patient’s counsel at the doctor’s interrogation permits the patient to

know what his doctor’s testimony is, allays a patient’s fears that his doctor may be


                                              8
disclosing personal confidences, and thus helps preserve the complete trust between

doctor and patient”), superseded by statute on other grounds, Minn. Stat. § 595.02, subd.

5.

       Respondent also challenges the constitutionality of Minn. Stat. § 595.02, subd. 5,

by arguing that the subdivision is a “usurpation of the rule making powers of the

judiciary by the legislature.” We disagree. “Minnesota statutes are presumed

constitutional, and our power to declare a statute unconstitutional is exercised with

extreme caution and only when absolutely necessary. We review the constitutionality of

a statute de novo.” State v. Lemmer, 736 N.W.2d 650, 657 (Minn. 2007).

       “When determining whether a statute impermissibly infringes on a judicial

function, we examine the nature of the statute. The judicial branch governs procedural

matters, while the creation of substantive law is a legislative function.” Id. A statute “is

procedural when it neither creates a new cause of action nor deprives defendant of any

defense on the merits[.] . . . [E]videntiary matters and matters of trial and appellate

procedure are procedural rules governed by the judicial branch.” Id. (quotation omitted).

Substantive statutes “are those that create, define, and regulate rights.” Id.

       The physician-patient privilege is a statutory creation. State v. Enebak, 272

N.W.2d 27, 30 (Minn. 1978); see Minn. Stat. § 595.02, subd. 1(d). “The legislature

which created the rule also possesses the power to create exceptions to the rule.” Enebak,

272 N.W.2d at 30. Respondent does not challenge the constitutionality of the underlying

privilege, which was created by the legislature. See id. Because the informal discussion




                                              9
authorized under subdivision 5 limits the statutorily created physician-patient privilege, it

is constitutional. See Minn. Stat. § 595.02, subds. 1(d), 5; Enebak, 272 N.W.2d at 30.

                                      DECISION

       Because an “informal discussion” with a treating physician who has examined or

cared for a party authorized under Minn. Stat. § 595.02, subd. 5, allows inquiry into “any

information or opinion” the physician possesses, including opinions on the standard of

care and causation relating to periods when the physician was not caring for the patient,

the district court abused its discretion by issuing a protective order preventing appellants

from asking Dr. Nagib about any opinions he may possess.

       Reversed.




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