                                 United States Court of Appeals
                                       FOR THE EIGHTH CIRCUIT
                                                 ___________

                                                  No. 97-1653
                                                 ___________

Brittany Ann Lelm, by her mother                     *
and natural guardian, Karen Lelm,                    *
                                                     *
                Plaintiff-Appellant,                 *
                                                     *  Appeal from the United States
        v.                                           *  District Court for the
                                                     *  District of Minnesota.
The Mayo Foundation, a Minnesota                     *
Corporation; St. Mary's Hospital,                    *
                                                     *
                Defendants-Appellees.                *
                                                 ___________

                                       Submitted: November 18, 1997
                                            Filed: February 2, 1998
                                                  ___________

Before BOWMAN, LAY, and MURPHY, Circuit Judges.
                                      ___________

LAY, Circuit Judge.

      In October 1986, the Mayo Clinic evaluated then thirteen-month-old
Brittany Ann Lelm for a congenital hip dysplasia condition.1 On October 16,
1986, Mayo Clinic physicians performed surgery on Lelm to correct her
dysplasia. During the procedure, orthopedic surgeons severed the femoral
artery and vein in Lelm’s right leg which disrupted the blood supply to her
leg and hip. After unsuccessful attempts to repair the




        1
       Congenital hip dysplasia occurs when the head of the long bone of the thigh (femur)
becomes displaced from the hip socket (acetabulum).
severed blood vessels, the orthopedic surgeons abandoned their planned method
of repairing her hip. Instead, they put the neck of her right thigh bone
into her hip, securing it with a metal rod. Doctors placed Lelm in a Spica
cast that covered her right leg from above the hip to almost the end of her
right foot. On October 17, tests revealed a severe lack of oxygen to the
leg. Vascular surgeons operated on Lelm, taking a portion of her jugular
vein to repair the circulation problem.       On October 18, Lelm developed
complications requiring surgery, and she underwent a third operation. Lelm
received treatment for her hip and leg from the Mayo Clinic and St. Mary’s
Hospital (“Mayo”) until May 10, 1991.

      On October 13, 1995, Lelm was ten years old. On that date, Lelm’s
mother and natural guardian filed this malpractice action on Lelm’s behalf
in federal district court. Mayo moved for dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6), maintaining Lelm’s claim was time-barred. The
district court granted Mayo’s motion to dismiss. Lelm v. Mayo Found., Civ.
No. 3-95-946, slip op. at 12 (D. Minn. Jan. 30, 1997). The court held Lelm’s
cause of action accrued on October 16 and 17, 1986, and the running of the
Minnesota statute of limitations commenced on October 17, 1986. Id. The
court said the applicable statutes of limitation required Lelm to file her
medical negligence claim within seven years following accrual. Id. The
court held Lelm’s action time-barred because Lelm filed her action nearly
nine years after accrual. Id.

      Lelm appeals. The precise issue before us is whether § 541.15 tolls
the period of limitation applicable to Lelm’s claim for a maximum of seven
years, after which the regular two-year statute of limitations begins to run,
or alternatively, as the district court held, whether § 541.15 prescribes a
maximum period of seven years in which the suit can be brought. We vacate
the order of dismissal.




                                    -2-
A.   Applicable Statute of Limitations Period under § 541.15

      In the State of Minnesota, all actions against physicians, surgeons,
or other health care professionals must be commenced within two years after
the cause of action accrues. See Minn. Stat. § 541.01, 541.07(1); Gulley
v. Mayo Found., 886 F.2d 161, 163 (8th Cir. 1989).         However, when a
plaintiff is under a disability such as infancy, Minnesota Statutes §
541.15 suspends the period of limitation for a certain amount of time.
Section 541.15 states in relevant part:

      (a) Except as provided in paragraph (b), any of the following
      grounds of disability, existing at the time when a cause of
      action accrued or arising anytime during the period of
      limitation, shall suspend the running of the period of
      limitation until the same is removed; provided that such
      period, except in the case of infancy, shall not be extended
      for more than five years, nor in any case for more than one
      year after the disability ceases:

      (1) that the plaintiff is within the age of 18 years;

      (2) the plaintiff’s insanity;

      (3) is an alien and the subject or citizen of a country at war
      with the United States;

      (4) when the beginning of the action is stayed by injunction or
      by statutory prohibition.

                                  * * *

      (b) In actions alleging malpractice, error, mistake, or failure
      to cure, whether based on contract or tort, against a health
      care provider, the ground of disability specified in paragraph
      (a), clause (1), suspends the period of limitation until the
      disability is removed. The suspension may not be extended for
      more than seven years, or for more than one year after the
      disability ceases.




                                      -3-
Minn. Stat. § 541.15.2

      The district court dismissed Lelm’s action on the grounds that §
541.15 provided Lelm a maximum of seven years to file her claim, and thus,
her claim was time-barred. In reaching its decision, the district court
relied in part upon the Minnesota Court of Appeals’ decision in LaVan v.
Community Clinic, 425 N.W.2d 842 (Minn. Ct. App. 1988). In LaVan, the
parents of a minor child brought a medical malpractice action on behalf of
the child in 1987, alleging that sixteen years earlier, in 1971, defendants
(a hospital and a clinic) provided negligent labor and delivery care.
LaVan 425 N.W.2d at 843-44. The issue before the LaVan court was whether
the 1986 amendments to § 541.15 applied retroactively. Id. at 844. With
respect to the issue of retroactivity, the LaVan court stated:

       If it applies prospectively, the claim has not expired because
       [the plaintiff] has not yet reached age 18, the age at which
       her minority would cease under the prior statute.         If it
       applies retroactively, her claim would be barred because the
       claim would have expired in 1978, seven years after the date of
       the alleged malpractice.




       2
      The current language of § 541.15 is a result of a 1986 amendment. Prior to the
amendment, § 541.15 stated in relevant part:

       Any of the following grounds of disability, existing at the time when a cause of
       action accrued or arising anytime during the period of limitation, shall suspend the
       running of the period of limitation until the same is removed; provided that such
       period, except in the case of infancy, shall not be extended for more than five
       years, nor in any case for more than one year after the disability ceases:

              (1) That the plaintiff is within the age of 18 years[.] . . .

Minn. Stat. § 541.15 (1984).

                                                 -4-
Id. (emphasis added). The LaVan court then reviewed the legislative intent
of the amendment and the circumstances surrounding its enactment, id. at
844-47, concluding the amendment applied retroactively. Id. at 847. The
court further stated:

        The statute provides alternate ways of determining the maximum
        length of time the limitations period may be tolled: ‘The
        suspension may not be extended for more than seven years, or for
        more than one year after the disability ceases[.]’       In this
        case, the seven-year period has run.       We do not reach the
        alternate possibility.

LaVan 425 N.W.2d at 847 (citation omitted).

      We believe the issue of whether § 541.15 provides a seven-year or
nine-year statute of limitations was of no import to the decision in LaVan.
Once the court decided the amendments to § 541.15 applied retroactively, the
LaVan plaintiffs’ sixteen-year-old claim was time-barred.3 This was true
regardless of whether the court held the maximum period of limitations for
the claim was seven years or nine years. LaVan, 425 N.W.2d 843-44. Thus,
the LaVan court’s remarks interpreting § 541.15 are dicta. These remarks
do not create a rule of law.4 See State v. Rainer, 258 Minn. 168, 177-78,
103 N.W.2d 389, 396 (Minn. 1960); see also Commissioner v. Estate of Bosch, 387 U.S. 456, 465
(1967) (in diversity cases, while inferior state court rulings




        3
          If the LaVan court had concluded the amendments did not apply retroactively, the
plaintiffs’ claim was timely.
        4
         We further note that in LaVan, the defendants limited their arguments to the issue of the
retroactive application of § 541.15. In their trial court memoranda supporting their motion to
dismiss, the defendants stated that § 541.15 tolled the statute of limitations for a maximum of
seven years, after which the normal two-year statute of limitations would begin to run. See
Appellant’s App. at 56-61 (reprinting LaVan defendants’ relevant trial court memoranda). In its
decision, the LaVan trial court took the same position. See Appellant’s App. at 62-67 (reprinting
LaVan trial court memorandum opinion).

                                                        -5-
should be attributed some weight, those rulings are not controlling where the state’s highest court has not spoken
on the point); Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996) (opinion of the Minnesota Court
of Appeals does not represent a definitive statement of the law of Minnesota until adopted by the Minnesota
Supreme Court).

      The district court said LaVan provided a reasonable reading of the
plain language of § 541.15. Lelm v. Mayo Found., Civ. No. 3-95-946, slip
op. at 7 (D. Minn. Jan. 30, 1997). The district court then compared §
541(a) and § 541.15(b), noting § 541.15(b) did not explicitly state the
disability of infancy suspends the running of the period until the
disability is removed.    Id. at 8.    The district court reasoned that §
541.15(b) only “suspends the period of limitation,” and “[s]hould the
legislature have intended that paragraph (b) suspend the ‘running’ of the
period of limitations it clearly knew how to draft such language.” Id. The
district court’s analysis is a reasonable interpretation of § 541.15(b).

      Yet, it is clear that § 541.15(a) contains words of repose, which
specify a presumptive number of years after which an action cannot be
brought. See Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830
(Minn. 1988).     In § 541.15(a),     the statute explicitly states the
limitations period (except in the case of infancy) “shall not be extended
for more than five years, nor in any case for more than one year after the
disability ceases.” Minn. Stat. § 541.15(a) (emphasis added). In drafting
paragraph (b) of § 541.15, the legislature used different phraseology, and
it stated the ground of disability in paragraph (a), clause (1) (infancy)
“suspends the period of limitation until the disability is removed. The




                                                      -6-
suspension may not be extended for more than seven years. . . .”5                         (emphasis
added). Thus, it is also reasonable to conclude that had the




       5
         Section 541.15(b) also reads “the suspension may not be extended . . . for more than one
year after the disability ceases.” This “one year” clause is not before us. Whether this is
independent of the first clause (the “seven years” clause) should be left to a future case where the
factual context requires analysis of it.

        The district court concluded that to interpret the “seven years” clause as providing Lelm
with two additional years to commence an action under § 541.07, yet to deny two additional years
to a plaintiff under the “one year clause,” would be inconsistent and would require anomalous
treatment of parallel clauses. Lelm v. Mayo Found., Civ. No. 3-95-946, slip op. at 7-8 (D. Minn.
Jan. 30, 1997). Yet, the “one year” clause must be read with the final clause of the preceding
sentence, to wit, infancy “suspends the period of limitation until the disability is removed.” Thus,
the concluding sentence of § 541.15(b), although containing parallel clauses, can be reasonably
applied to different factual scenarios: (1) where the end of the seven-year suspension falls within
the plaintiff’s infancy and the plaintiff has two or more years left before reaching the age of
eighteen; and (2) where after suspension of seven years or less, one additional year beyond the
age of eighteen has expired.

        We offer the above discussion, not to resolve the ambiguity, but simply to demonstrate it
is not necessarily anomalous to construe the two parallel clauses differently. Although the “one
year” clause and “seven years” clause appear side by side in the same sentence, they are obviously
intended to address two different situations.

                                                 -7-
legislature intended § 541.15(b) to operate like § 541.15(a), it knew how
to draft language that would reflect that intent.

      Further, when interpreting Minnesota Statutes, courts are to construe
words and phrases according to their common and approved usage. See Minn.
Stat. § 645.08 (listing canons of construction). The words of § 541.15(b)
at issue in this case are the words “suspend” and “suspension.”          To
“suspend” is to cause to stop temporarily. Webster’s Ninth New Collegiate
Dictionary 1189 (1990). A “suspension” is the state or period of being
suspended. See id. If the “period of limitation” is stopped or suspended,
it cannot also be running. Thus, another reasonable interpretation of the
statute would be that in the case of a minor’s medical malpractice action,
§ 541.15(b)




                                   -8-
suspends the running of the two-year period of limitations in § 541.07 for
up to seven years, and after seven years, the two-year period of limitations
begins to run.

      However, it would appear that this interpretation of § 541.15(b) on
its face is no more reasonable than that of the district judge. Thus, we
think it clear the statute is ambiguous. See State by Beaulieu v. RSJ,
Inc., 552 N.W.2d 695, 701 (Minn. 1996) (a statute is ambiguous if it is
reasonably susceptible to more than one interpretation);         Phelps v.
Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995) (same).
In Minnesota, it is well-settled that where a statute is ambiguous, a court
may ascertain legislative intent by looking at the statute’s legislative
history. See Minn. Stat. § 645.16.

B.   Legislative History of § 541.15(b)

      Courts may examine the materials that constitute legislative history,
including legislative committee tapes, when the purpose is to determine what
the Legislature intended by the language it used. See Stearns-Hotzfield v.
Farmers Ins. Exch., 360 N.W.2d 384, 389 (Minn. Ct. App. 1985).           The
Minnesota Legislature enacted § 541.15(b) in 1986 as part of a larger tort
reform bill. See 1986 Minn. Laws, ch. 455, § 79. Extensive discussion and
debate preceded the enactment of § 541.15(b). This discussion and debate
gives insight into the legislative intent of § 541.15(b). Representative
Kathleen Blatz, now Chief Justice-elect of the Minnesota Supreme Court, was
the sponsor6 of H.F. 1764, a predecessor to the final amendments to §




       6
         In North Haven Board of Education v. Bell, 456 U.S. 512, 526-27 (1982), the Court
observed that “remarks . . . of the sponsor of the language ultimately enacted . . . are an
authoritative guide to the statute’s construction.” Justice Scalia echoed this statement in 1995
when he stated “what those who brought the legislation to the floor thought it meant [is] evidence
as solid as any ever to be found in legislative history.” Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 115 S. Ct. 2407, 2427 (1995) (Scalia, J., dissenting).

                                               -9-
541.15, which was then referred to the House Financial Institutions and
Insurance Committee. See Appellant’s App. at 20. H.F. 1764, as originally
introduced, contained a five-year disability provision.    Representative
Blatz stated:

       In Section 9 we’re dealing with statute of limitations. Currently a minor can bring a lawsuit up
       to 19 years if it happened at birth, and what happens is you have 18 years of where you call it
       disability and that’s because of you’re of minority, and then you have an additional year. What
       the bill currently does is it allows the disability to be treated like other disabilities such as mental
       illness, mental retardation, whatever, is covered, and that is five years of disability and then the
       two-year statute of limitations would run, so a minor would have seven years.7



       7
         The next day, the Judiciary Committee continued its consideration of H.F. 1764.
Representative Blatz proposed an amendment to H.F. 1764 which extended the disability period
in the bill from five years to six years. See Appellant’s App. at 23. The following dialogue took
place:

       Blatz: Mr. Chairman, . . . [t]he National Academy of Pediatricians has a model bill
       which would basically cover all cases and that is 6 plus 2. Six years of disability
       and 2 years of bringing a lawsuit so a minor would have 8 years and that is what
       that amendment does.

       Chair: Okay. Can you tell me how this amendment varies from the bill as
       introduced again?

       Blatz: Mr. Chairman, as it was introduced it was a total of 7 years. That’s one
       less than the model. It just isn’t worth it. You might as well go with the model.

       Chair: What does that mean to those of us who don’t understand statutes of
       limitations?

       Blatz: If you were, Mr. Chairman, if you were hurt, let’s say at the age of 4 years
       of age. Since you are under the age of 18, it is considered a disability in our law
       currently. You’re disabled, just like people who are, perhaps who are ill or
       incapacitated for other reasons, we give the 5 year disability and at that point,
       whatever statute of limitations is applicable will begin to run. Medical malpractice
       is 2 years, so we’ll have 5 years plus the 2 years to bring the lawsuit.

       Chair: So the statute under your existing bill tolls it for five years and the statute
       will run two years thereafter. And this amendment does what?

       Blatz: Well, after doing some research and talking to people and finding out about
       the model bill, we thought there was no purpose doing it one year less than what

                                                       -10-
See id. at 22. Approximately one week later, Senator Eric Petty introduced S.F. 1670. See id. at 28. S.F. 1670
was a companion bill to H.F. 1764, and it proposed a disability period of eight years. Eventually, the House
version and the Senate version were incorporated into H.F. 1950, an omnibus tort reform bill.           See
Appellant’s Br. at 22.




        they’re saying so I’m just trying to get in conformity with what the model bills [sic]
        is.

        Chair: The model bill says toll the statute for 6 years and then--

        Blatz: Two years after that.

        Chair: Two years. Now is that what this amendment says?

        Blatz: Yes.

See id. at 23-24. After further discussion regarding the most practical disability period, the
committee chair put the amendment to vote, stating: “If there’s no further discussion we have the
Blatz amendment before us that would toll the statute for 6 years plus the 2.” See id. at 27. The
Committee adopted the amendment. See id.



                                                   -11-
        After H.F. 1950 passed the House with a six-year disability period and passed the Senate with an eight-
year disability period, the House and the Senate formed a conference committee. See id. At the hearing,
Representative Blatz explained the differences in the House and Senate bills:

        The difference in the two bills is the Senate provides for a[n] 8 year statute of limitations and then
        the 2 years running for medical malpractice on top of that. The House has 6 years plus 2. We
        thought we’d just split the difference to 7 plus 2. So it’d be 7 years.”

See Appellant’s App. at 30.

        The conference committee did not report back on H.F. 1950. See Appellant’s Br. at 22. The conference
committee carried the bill to the House floor as H.F. 1950A amended into S.F. 2078, which contained the language
of the current statute. See id. Both the House and the Senate passed S.F. 2078. See id.

      We conclude from our study of the legislative history that the
legislature intended § 541.15(b) to toll the two-year statute of limitations
for a maximum of seven years, after which the two-year statute of
limitations would commence. Thus, a plaintiff like Lelm has a maximum of
nine years to file her claim after her cause of action accrues.         This
conclusion carries out the legislative intent of § 541.15(b).

C.    Accrual of Lelm’s Cause of Action

      The district court concluded the single act exception8 applies to
Lelm’s claims,




        8
         The single act exception is an exception to the general rule that a medical malpractice
action accrues upon completion of treatment. See Gulley, 886 F.2d at 163. The exception
applies 1) when the alleged malpractice consists of a single act which is complete at a precise
time, 2) which no continued course of treatment can cure or relieve, and 3) where the plaintiff is
actually aware of the facts upon which the claim is based. See id.

                                                       -12-
and Lelm’s cause of action accrued on October 17, 1986. Lelm contends the
single act exception does not apply, and her claims accrued on May 10, 1991,
when her treatment at Mayo ceased. Because of our conclusion that Lelm had
nine years in which to file her claims, Lelm’s action filed on October 15,
1995 is timely regardless of whether her cause of action accrued on October
17, 1986 or later. Thus, we do not reach the issue of accrual.

      Judgment of dismissal is vacated and the case is remanded to the
district court for further proceedings.

     A true copy.

           Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -13-
