Blohm v. Minneapolis Urological Surgeons, P.A.

442 N.W.2d 812, 1989 WL 72115
CourtCourt of Appeals of Minnesota
DecidedAugust 15, 1989
DocketC6-88-2515
StatusPublished
Cited by5 cases

This text of 442 N.W.2d 812 (Blohm v. Minneapolis Urological Surgeons, P.A.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blohm v. Minneapolis Urological Surgeons, P.A., 442 N.W.2d 812, 1989 WL 72115 (Mich. Ct. App. 1989).

Opinions

OPINION

NORTON, Judge.

Petitioners seek a writ of prohibition to restrain the trial court’s enforcement of its order denying leave to conduct an informal discussion pursuant to Minn.Stat. § 595.02, subd. 5 (1988). The petition for writ of prohibition is denied.

FACTS

Roger and Delores Blohm commenced a malpractice action against petitioners Dr. Peter Kieley and Metropolitan Internists and against respondents Dr. William Price and the Minneapolis Urological Surgeons. Dr. Price performed prostate surgery on Roger Blohm and subsequently prescribed [814]*814an estrogen compound. Dr. Kieley saw Blohm after the surgery. Blohm complained of circulatory problems in his legs, but Dr. Kieley recommended no definite treatment. Blohm went to the emergency room at Metropolitan Medical Center and saw Dr. Peterson, complaining again of circulatory problems. Dr. Peterson contacted Dr. Kaufman and, pursuant to his orders, contacted Dr. Lindberg, who attempted unsuccessfully to treat the circulation problem. It is claimed the estrogen was negligently prescribed and caused or contributed to the problem necessitating the amputation of Blohm's lower extremities.

Petitioners attempted to conduct an informal discussion with Dr. Peterson pursuant to Minn.Stat. § 595.02, subd. 5 (1988), after the certificate of readiness had been filed. Respondent Blohm’s counsel objected to this at the pretrial conference, claiming the discussion constituted discovery and was therefore subject to the time constraints set forth in the Rules of Civil Procedure and the special rules of practice for Hennepin County. The trial court agreed and denied leave to conduct the informal discussion by order dated November 23, 1988.

ISSUE

Is the informal discussion process authorized by Minn.Stat. § 595.02, subd. 5 (1988) subject to the local rules of discovery?

ANALYSIS

In order for a writ of prohibition to issue, three requirements must be met: (1) an inferior court or tribunal must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) the exercise of such power must result in injury for which there is no adequate remedy. Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 208 (Minn.1986) (citing Richardson v. School Board of Independent School District No. 271, 297 Minn. 91, 210 N.W.2d 911 (1973)). The writ is not one of right but of discretion and issues “only in extreme cases where the law affords no other adequate remedy by motion, trial, appeal, certiorari, or otherwise.” Id. (quoting Wasmund v. Nunamaker, 277 Minn. 52, 54, 151 N.W.2d 577, 579 (1967)).

The parties concede that the trial court’s denial of the leave to conduct the informal discussion constitutes the exercise of judicial power. Petitioners argue that the court’s order is unauthorized by law because the informal discussion is not a form of discovery subject to court rules or the court’s discretion. We disagree.

Minn.Stat. § 595.02, subd. 5 (1988) provides that a person who commences an action for malpractice must provide authorizations waiving in that action any physician-patient privilege existing under Minn. Stat. § 595.02, subd. 1, as to any information or opinion in the possession of a physician who has examined or cared for the person. This section further provides:

This waiver must permit all parties to the action, and their attorneys or authorized representatives, to informally discuss the information or opinion with the health care provider if the provider consents.

Minn.Stat. § 595.02, subd. 5. A defendant must give fifteen days notice before the discussion, and the plaintiff’s attorney is allowed to be present at the discussion. Id.

If the health care provider does not consent to the discussion, then:

the party seeking the information or opinion may take the deposition of the health care provider with respect to that information and opinion, without obtaining a prior court order.

Id.

The purpose of the discussion is to gather facts, narrow issues, and obtain evidence for use at trial. Although discussions with treating physicians are not listed as discovery under Minn.R.Civ.P. 26.01, the purpose of the discussion compels the conclusion that the discussions constitute one form of discovery and are subject to the Rules of Civil Procedure and the special rules of the district courts.

We believe the legislature did not intend the statute to be exempt from the proce[815]*815dural rules governing discovery. See Minn.R.Civ.P. 81.03 (where statute provides that an act in a civil proceeding be done in the manner provided by law, such act must be done in accordance with these rules). Generally, rules of civil procedure apply unless they are inconsistent with the statutory practice and procedure. Parker v. O’Phelan, 414 N.W.2d 534, 536 (Minn.Ct.App.1987), aff'd 428 N.W.2d 361 (Minn.1988) (citing Universal Construction Co. v. Peterson, 280 Minn. 529, 530-31, 160 N.W.2d 253, 255 (1968)). The courts will find inconsistency only if a provision of the statute directly conflicts with the rules. Id. (citing Tischendorf v. Tischendorf, 321 N.W.2d 405, 409 n. 2 (Minn.1982), cert. denied 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983)). A rule will still apply if it is consistent with the statute and its application does not frustrate the statute’s purpose. Id. at 537 (citing Guillaume & Associates, Inc. v. Don-John Co., 336 N.W.2d 262, 263 (Minn.1983)).

We must ascertain and effectuate the intent of the legislature, since this statutory provision was adopted without any reference as to whether the informal discussion process would be included as discovery or subject to the discovery provisions in the Rules of Civil Procedure. See Minn.Stat. § 645.16 (1988). In determining legislative intent, we must look at the occasion and necessity for the law, the objective to be obtained by the provision and any former law. Id.

This statutory provision was adopted in 1986 to clarify Rule 35.04, thereby allowing doctors and attorneys to meet and have an informal discussion and providing better access to information within possession of a plaintiffs treating doctor. See Minnesota Medical Association Commission, Task Force on Civil Justice System (October 11, 1985); Minnesota Medical Association, Report of the Commission on Professional Liability, pp. 21-22 (November 1985).

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Blohm v. Minneapolis Urological Surgeons, P.A.
442 N.W.2d 812 (Court of Appeals of Minnesota, 1989)

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Bluebook (online)
442 N.W.2d 812, 1989 WL 72115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blohm-v-minneapolis-urological-surgeons-pa-minnctapp-1989.