author: RANDALL, Judge

text:
    Mary E. DEMGEN, individually and as Trustee for the Next of Kin of Baby Boy Martin Keller Demgen, Decedent, et al., Appellants, v. FAIRVIEW HOSPITAL and Healthcare Services, d/b/a Fairview Riverside Medical Center and a/k/a Fairview-University Medical Center-Riverside Campus, et al., Respondents.
    No. C8-00-705.
    Court of Appeals of Minnesota.
    Jan. 2, 2001.

      John G. Engberg, Mark W. Bay, Peterson, Engberg & Peterson, Minneapolis, MN, (for appellants).
    Kay Nord Hunt, Phillip A. Cole, Sheila A. Bjorklund, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, (for respondents).
    Considered and decided by RANDALL, Presiding Judge, CRIPPEN and KALITOWSKI, Judges.
   OPINION

RANDALL, Judge

Appellants Mary E. Demgen, individually and as trustee for the next of kin of Baby Boy Martin Keller Demgen, and Martin A. Demgen challenge the district court’s dismissal of their medical malpractice action for failure to comply with the expert affidavit requirements in MinmStat. § 145.682 (2000). Appellants contend the district court erred in determining that the expert affidavit they submitted did not meet the statutory requirements. We agree.

FACTS

When Mary Demgen was approximately 36 weeks pregnant, she started noticing decreased fetal movement. On August 7, 1996, Demgen called Michael Pleasants, M.D. to report the decreased movement. Dr. Pleasants is a family practice physician, and he was on call in place of Dem-gen’s primary care doctor. Dr. Pleasants told Demgen to conduct a fetal movement count at home, and if she did not feel four to five movements within 20 to 30 minutes, she should go to Fairview Riverside Medical Center’s labor and delivery unit. Dem-gen continued to notice decreased fetal movement, so she left for Fairview. On the way to Fairview, Demgen felt some movement from the fetus.

At Fairview, Demgen was evaluated by the attending nurse, Margaret Mesaros. At 7:38 p.m., an external fetal monitor was applied to Demgen to verify fetal heart activity. From the beginning, the reading was abnormal, with markedly decreased beat-to-beat variability and no reassuring fetal heart rate accelerations. Mesaros, however, did not indicate on the medical records that there was poor heart tracing. At 7:50 p.m., Mesaros called Dr. Pleasants. Both Dr. Pleasants and Mesaros said that they did not remember the details of that conversation. There is no indication in the medical records that this conversation resulted in an attempt to use alternative means to assess the status of the fetus.

The external fetal monitor continued to verify fetal heart activity until 8:31 p.m., when all signs of fetal heart tones were lost. A subsequent ultrasound found no fetal cardiac activity and a diagnosis of intrauterine fetal demise was made.

About one week later, on August 15, 1996, Demgen delivered a stillborn male. Oligohydramnios (low amniotic fluid) was diagnosed at the time of delivery. An autopsy on August 16, 1996, established that the umbilical cord had a true knot.

Appellants filed a medical malpractice claim on August 3, 1998, against respondents Fairview Hospital and Healthcare Services, Dr. Pleasants, Preston Williams, M.D., and Mesaros. All claims against Dr. Williams were subsequently dismissed.

On February 3, 1999, appellants served respondents with an affidavit of expert identification, listing Douglas Soderberg, M.D. as appellants’ medical expert. On June 23, 1999, respondents served appellants with an affidavit of expert identification, listing Virginia Lupo, M.D. as then-medical expert. On July 28, 1999, respondents made a motion for dismissal pursuant to MinmStat. § 145.682, subd. 6 (2000), and a motion for summary judgment for failure to establish a prima facie case of medical malpractice. On August 10, 1999, appellants served respondents with a supplemental affidavit from Dr. Soderberg, responding to Dr. Lupo’s affidavit.

Following a motion hearing, the district court dismissed appellants’ claims, relying solely on Minn.Stat. § 145.682, subd. 6. The district court did not rule on the summary judgment motion.

ISSUES

1. Did the district court err in dismissing appellants’ medical malpractice claim under MinmStat. § 145.682 (2000)?

2. Did the district court err by relying on autopsy reports and the rebuttal affidavit of respondents’ expert in determining that appellants’ expert affidavit was inadequate?

ANALYSIS

I. Sufficiency under Minn.Stat. § 145.682, subd. 4(a)

An appellate court will not reverse dismissal of a suit pursuant to Minn.Stat. § 145.682 (2000), absent a showing that the district court abused its discretion. Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn.2000). Minn.Stat. § 145.682 requires plaintiffs to file two separate affidavits in medical malpractice cases. Our focus in this case is on the second affidavit, sometimes called the affidavit of expert identification. Within 180 days after the commencement of a medical malpractice action, the plaintiff must serve upon the defendant an affidavit that

must be signed by each expert listed in the affidavit and by the plaintiffs attorney and state the identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of malpractice or causation, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.

Minn.Stat. § 145.682, subd. 4(a). Failure to comply with the affidavit requirements is grounds for mandatory dismissal with prejudice. Id., subd. 6.

The affidavit must contain more than just the facts found in the hospital or clinic record; conclusory statements are insufficient. Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552 at 555-56 (Minn.1996). Rather, the plaintiffs

must set forth, by affidavit or answers to interrogatories, specific details concerning [the] experts’ expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.

Sorenson, 457 N.W.2d at 193. The expert’s affidavit may not simply be read in connection with the death certificate, because doing so would constitute improper reliance on the mere facts in the hospital record. Stroud, 556 N.W.2d at 556.

The supreme court addressed the adequacy of the expert’s affidavit in another case involving a stillborn baby, Lindberg v. Health Partners, Inc., 599 N.W.2d 572 (Minn.1999). Debra Lindberg was pregnant and receiving prenatal care from Group Health. Id. at 573. One morning, she experienced symptoms which caused her concern. Id. She called Group Health and was advised that she did not need to go to her clinic. Id. The next day her symptoms worsened, but Group Health again advised her not to go to the clinic.' Id. at 574. Shortly thereafter, her symptoms worsened even further, and she was told to go to a hospital. Id. Upon arrival, her baby was delivered stillborn. Id. A medical malpractice action was commenced against Group Health and others. Id.

Within the required 180-day period, the trustee-plaintiff served an expert affidavit. Id. The affidavit set forth the expert’s opinion, in part, as follows:

4. Based upon a reasonable degree of medical certainty, it is more probable than not, that if, among other things, Debra Lindberg had been instructed to seek medical treatment at the time of her phone call on the morning of March 28, 1994, [the baby] would not have died.
5. Based upon a reasonable degree of medical certainty, [the baby] died as a result of the negligent and careless conduct of the Defendants * * *.

Id. at 575. The district court granted defendants’ motion to dismiss on the basis that the plaintiff failed to comply with section 145.682. Id. This court reversed, holding the affidavit was sufficient. Id. at 576. The supreme court reversed and held that the affidavit was inadequate with the statute. Id. at 578. In so holding, the court noted that strict compliance with the statute “requires far more information than simply identification of the expert intended to be called at trial.” Id.

Unlike Lindberg, the district court in this case found that the expert affidavit sufficiently identified the applicable nursing standard of care and the manner in which the treatment provided deviated from that standard of care. But, it found that the affidavit was inadequate on the issue of the “chain of causation:”

Dr. Soderberg goes on to make the broad, conclusory statement “[flailing to have the appropriate tests completed was a direct cause of the fetus’ death. The deviation from the standard of care specified above caused the demise of Mrs. Demgen’s fetus.”

In finding that Dr. Soderberg’s affidavit provided only broad conclusory statements, the district court improperly focused on two specific sentences in the affidavit instead of reading the affidavit as a whole.

We conclude that Dr. Soderberg’s lengthy and detailed affidavit provided much more. In relevant part, it set out a precise explanation of why respondents’ failure to follow the applicable standard of care caused the death of the fetus:

a. There was a deviation from the standard of care in evaluating the status of Mrs. Demgen’s fetus upon her admission to Fairview Riverside Medical Center Labor and Delivery on August 7, 1996. It is highly unusual for a fetus to die while undergoing fetal heart rate tracing in Labor and Delivery. When the non-reassuring fetal heart rate tracing is indicated at inception of admission, further evaluation should have been performed. The applicable standard of care requires that a doctor be immediately called in to do further testing to assess the status of the fetus. Failing to immediately involve a doctor based on the heart rate tracing present in this case deviated from the standard of care. The fact that the medical records show absolutely no comments on the poor heart tracing or any attempt to assess the status of the fetus in any other manner during the entire period of heart rate tracing indicates a deviation from the applicable standard of care. Nowhere in the medical records is there any evidence that the Labor and Delivery nurse was at all concerned by the very abnormal heart rate tracing, even though the patient had been admitted because of decrease[d] fetal movement. Examination of Exhibit C indicates that the Labor and Delivery nurse was aware that this was the reason for admission.
b. The applicable standard of care under the circumstances of this case would dictate that a fetal acoustical stimulation test or another type of fetal stimulation test or an immediate bedside ultrasound should have been performed.
c. Had the ultrasound test been performed, it would have revealed abnormally low amniotic fluid levels (i.e., the presence of Oligohydramnios). In combination with the markedly abnormal fetal heart rate tracing, this finding would dictate the need for an immediate caesarean section.
d. In a hospital comparable to that at issue, the applicable standard of care would dictate that such an emergency caesarean section be accomplished within 53 minutes, prior to this fetus dying. The failure to have the appropriate tests completed delayed having a caesarean section performed. Failing to have the appropriate tests completed was a direct cause of the fetus’ death. The deviations from the standard of care specified above caused the demise of Mrs. Dem-gen’s fetus.
e. Had such an emergency caesarean section been timely performed, a live birth would have resulted. The applicable standard of care would dictate that the procedures specified above, including delivery by caesarean section, should have been completed prior to the cessation of the fetus’s cardiac activity, as indicated on the monitoring strip.

If this affidavit, taken as a whole, does not meet the requirements of Minn.Stat. § 145.682, subd. 4(a), this court questions “whether any expert affidavit ever will?”

Regarding negligence and causation, Dr. Soderberg’s affidavit states that: (a) the applicable standard of care required the nurse to immediately involve a doctor to further assess the highly unusual fetal heart rate tracing; (b) the applicable standard of care required a fetal acoustical stimulation or a bedside ultrasound; (c) the ultrasound would have revealed the presence of oligohydramnios (abnormally low amniotic fluid levels); (d) the combination of these findings would require an immediate caesarean section; (e) failure to administer the appropriate tests delayed a caesarean section; (f) “[h]ad such an emergency caesarean section been timely performed, a live birth would have resulted”; and (g) if appellants had followed the applicable standard of care, including delivery by caesarean section, the fetus would have been born “prior to the cessation of the fetus’s cardiac activity.” Unlike the conclusory statements in Lindberg, Dr. So-derberg’s affidavit provided an explanation of the standard of care, the nurse’s specific deviations from the standard of care, and a chain of causation resulting from the deviation. Compare Sorenson, 457 N.W.2d at 192-93 (holding that affidavit stating defendant failed to properly evaluate and diagnose was inadequate), with Haile v. Sutherland, 598 N.W.2d 424, 427 (Minn.App.1999) (holding that affidavit not signed by expert, lacking expert credentials, standard of care, specific alleged deviation from standard, and causal connection, and which merely recited known facts from medical records was inadequate to satisfy statute). Therefore, the district court abused its discretion by dismissing appellants’ lawsuit based on the sufficiency of the affidavit.

The medical malpractice statute was created to help the court system identify frivolous claims. See Stroud, 556 N.W.2d at 555. The legislature has not declared that all medical malpractice claims are against public policy.

An examination of the history and purpose of Minn.Stat. § 145.682 is helpful. The legislation resulted from intense pressure by the medical industry to reduce what it terms “frivolous lawsuits.” See Jason Leo, Case Analyses: Recent Decisions of the Minnesota Supreme Court, 27 Wm. Mitchell L.Rev. 1399, 1403-05 (2000) (stating that medical malpractice legislation was enacted to limit the number of lawsuits brought each year). However, “frivolous” is subjective. Usually, frivolous lawsuits are those that have minor and/or wholly subjective injuries. They may be the result of emotions running high, such as neighbor fence yard disputes; or apartment dwellers litigating “your dog is chasing my cat;” propound a new or bizarre cause of action, etc. In short, frivolous suits may prompt courts and others to wonder “where in the world did this one come from!?”

By contrast, an examination of the facts in cases involving the expert affidavit requirements of Minn.Stat. § 145.682 reveals that they tend to involve serious injuries, claims of wrongful death, stillborn babies, the expense and pain of second operations, improperly set limbs, comas, paralysis, etc. alleged to result from improper medical care. This is, by no means, an exclusive list. Noted author Susan Sontag observed once “[ejveryone who is born holds dual citizenship, in the kingdom of the well and in the kingdom of the sick.” Mary Pipher, Another Country 28 (1999).

In general, claims of medical malpractice, including this one, involving a stillborn birth, tend not to arise over frivolous and/or inconsequential injuries. The reasons that courts tend to see only malpractice cases involving more serious injuries are varied and largely practical. Generally, only law firms with experience in the area, as well as the financial resources for what can be an incredibly expensive discovery process, are willing to take medical malpractice cases. When claimed injuries are minor, even if there is a good chance at showing negligence and causation, medical malpractice claims may never be submitted to a court because it is not economically feasible for firms to pursue them.

The medical industry’s claim that it needs to be protected from “frivolous lawsuits” is perhaps better understood in the sense that any person or entity dislikes going to court when the results could be a huge judgment against it. We understand that medical malpractice lawsuits are, at times, a nuisance to the medical industry, but, serious injuries and deaths are most certainly a “nuisance” to plaintiffs and their families.

Minn.Stat. § 145.682 is firmly in place, but it remains for the judicial system to interpret how strictly it stands as a bar to medical malpractice claims, at times shutting lawsuits out even before the claims get to the summary judgment stage.

Respondents in this case (and medical professional defendants in other cases), claim that substantial prejudice would result if Minn.Stat. § 145.682 isn’t construed strictly against plaintiffs. In point of fact, because of the detailed and exhaustive civil discovery process in Minnesota allotted to all plaintiffs and defendants, no prejudice whatsoever results to defendants in medical malpractice claims by a reasonable reading of Minn.Stat. § 145.682.

There is no need to over-scrutinize the expert affidavit. When the affidavit is approved by the district court, nothing bad happens. It is almost a nonissue. If Dr. Soderberg’s affidavit had been approved by the district court, nothing would be changed in this case. The defense would continue with the reams of interrogatories and supplemental interrogatories now allowed, would proceed with all avenues of discovery open to them under Minn. R. Civ. P. 26, and would have the benefit of Minn. R. Civ. P. 35, including Minn. R. Civ. P. 35.04, which requires complete disclosure by the plaintiff, allows for total cross-examination of a party’s medical expert if that testimony goes in as a testimonial disposition, and allows for the deposition of treating or examining medical experts upon motion and a showing of good cause.

If Minn.Stat. § 145.682 had never been enacted, nothing would be changed in this case. The defense would have the right to demand the names of prospective witnesses, medical or otherwise, and benefit of other discovery permitted under the civil rules. The same round of discovery would commence by both sides that was in place before the enactment of the statute, and the discovery process would be identical to the discovery process now in place after the statute. By the time of trial, the contents of a section 145.682 affidavit may become almost irrelevant. Neither side in these cases takes the expert affidavit as the end all and be all and attempts to rest on them. In short, the normal processes of discovery into negligence, causation, and damages provide the tools and information for the defense attorney to approach a medical malpractice case.

There is no practical reason, nor is any mentioned in the statute, which leads us to defy the Minn.Stat. § 145.682, subd. 4(a) affidavit and setting everything else aside, fly speck it against the plaintiff as if medical malpractice claims were “lifted” out of the decades-old rules of Minnesota civil procedure and transported back to the days of Napoleonic code pleading. In Justice Gilbert’s opinion in Anderson, 608 N.W.2d 843, he conveyed concern that the majority seemed to be “reverting back to code pleading, * * * requiring plaintiffs to initially allege all detailed facts sufficient to prove the cause of action.” Id. at 852 (Gilbert, J., concurring in part and dissenting in part). He stated that section 145.682 was “never meant to require plaintiffs * * * to literally try their cases in pre-trial affidavits.” Id. at 853.

Dr. Soderberg’s detailed and exhaustive affidavit easily puts the defendants on notice of his medical opinion covering the areas of negligence, causation, and the standard of care. Section 145.682 is a discovery tool, not a fetish. The affidavit is not a trial on the merits. It will not be introduced at trial as a separate exhibit resting on its own merits (assuming no other foundation than that “it was drawn”), and in reality is nothing more than a sneak preview to what defense counsel will inevitably uncover during the normal exhaustive discovery process. I suspect the medical industry would be alarmed if the identification of expert statute, at issue here, was held in such high regard that if the affidavit was accepted by the trial court, then a directed verdict would automatically be filed in favor of the plaintiff on the issues of negligence and causation, leaving only the issue of damages for the jury. I suspect defense counsel would immediately appeal, arguing that the statute was only meant to identify the plaintiffs expert(s) and theory of the case and was never meant to be a substitute for the normal civil discovery process and a trial on the merits. That is exactly our point.

As stated above, after examining the complete affidavit of Dr. Soderberg, we easily conclude that it is adequate under the statute, and informs respondents of what they are entitled to know about the plaintiffs’ case to prepare themselves for the discovery process and trial. The district court erred in finding that appellants’ expert affidavit failed to meet the requirements of Minn.Stat. § 145.682, subd. 4(a).

II. Standard for proof of sufficiency

The district court compounded its error by relying on the autopsy report and the rebuttal affidavit of respondents’ expert to weigh and analyze the adequacy of appellants’ expert affidavit. In concluding that appellants’ expert affidavit did not satisfy the statute, the district court stated:

The expert affidavit ignores the placental pathology report and the autopsy report that indicate that the fetus had a true knot in the umbilical cord. The expert affidavit does not provide any explanation as to how involving a physician immediately would have prevented the true knot in the umbilical cord and thus prevented the death of this fetus.

Respondents argue that the expert’s affidavit must establish not only that negligence caused death, but also show (1) the sequence of biological facts that led to death and (b) the consistency of the expert’s theory of causation with all biological facts. We find no authority for such an extension of the already significant statutory affidavit requirement.

The trial court adopted respondents’ argument, concluding that Dr. So-derberg’s affidavit was inadequate because it did not refute respondents’ theory that the knot in the cord made death “unpreventable.” We note that Minn.Stat. § 145.682, subd. 4(a), does not require an expert affidavit to anticipate and refute adverse opinions and somehow address them.

Respondents argue that Dr. Soderberg’s affidavit does not adequately identify the actors. We easily conclude that it does. They are identified, and the description of many of the breaches of care implies conduct of both actors. Further discovery, a certainty to follow, will help develop the issues of whether one act was more significant than others, and which actor was responsible for the act.

The autopsy and placental pathology reports, prepared by respondent hospital, both stated that the umbilical cord had a true knot. Dr. Lupo’s counter-affidavit concluded that a cesarean section (that Dr. Soderberg said was required under the applicable standard of care) would not have saved the fetus’s life because of the presence of the true knot. The district court’s order does not refer specifically to Dr. Lupo’s report, but it is clear that it is the basis for the court’s conclusion that involving a physician immediately would not have prevented the true knot. Dr. Soderberg’s affidavit referred to the fetal autopsy and placental examination, noting that the umbilical cord had a true knot. Despite this knowledge, it was Dr. Soder-berg’s opinion that the fetus could have been born alive if the proper standard of care had been followed.

There is nothing in Minn.Stat. § 145.682 that suggests district courts are to use defendant’s rebuttal affidavits and outside medical reports to judge the sufficiency of a plaintiffs expert affidavit. See Lindberg, 599 N.W.2d at 578 (holding that exceptions should not be read into medical malpractice statute because “it is not for the courts to read into a clear statutory scheme something that plainly is not there”).

The Minnesota Supreme Court has provided guidance on the issue of how a district court should balance conflicting opinions contained in expert affidavits offered by the parties. In Tousignant v. St. Louis County, 615 N.W.2d 53 (Minn.2000), the supreme court found that the plaintiff did not meet the requirements of Minn.Stat. § 145.682, but it concluded that plaintiffs cause of action was an extraordinary case not dependent on expert testimony. Id. at 58-60. The supreme court held that the plaintiff was still required to establish a prima facie case of medical malpractice, but when deciding whether a plaintiff had done so, the district court should rely on the plaintiffs expert and not on rebuttal testimony from the defendant’s expert. Id. Establishment of a prima facie case is not the same as defending against summary judgment. Id. at 60. The language in Tousignant suggests that the district court’s decision on the sufficiency of a plaintiffs expert affidavit is comparable to the decision on whether a plaintiff has established a prima facie case of medical malpractice. See id. at 59-60. Because conflicting evidence is not considered in determining whether a plaintiff has established a prima facie case, it was improper in this case to add that requirement.

We conclude that the district court erred in relying on a defendant’s rebuttal expert affidavit in balancing and weighing (as if by a “mini-trial within a trial”) Dr. Soder-berg’s expert affidavit to see if it met the statutory requirements of Minn.Stat. § 145.682, subd. 4(a).

The district court also improperly relied on the autopsy report in making its findings. The autopsy and placental pathology reports both “conclude” that the umbilical cord had a true knot. Concerning the true knot, the autopsy reports contained only conclusory statements (analogous to the “conclusory statements” that defense counsel have successfully argued are inadequate in an expert affidavit under section 145.682). Stroud held that a plaintiff cannot rely on a death certificate, in addition to an expert affidavit, to satisfy the statutory requirements because the death certificate does not provide an explanation of causation. 556 N.W.2d at 556. The autopsy and pathology reports in this case also contain no chain of causation between the true knot and the fetus’s death. Further, Dr. Soderberg’s affidavit contains his conclusion that the fetus would have been born if the proper standard of care had been followed. If a plaintiff cannot rely on conclusory statements in medical records to supplement an expert affidavit, the district court cannot rely on conclusory statements in an autopsy report to dismiss a plaintiffs expert affidavit for failure to answer and rebut every such statement in that autopsy report.

It should be noted that autopsy reports are required by law only in certain cases (see Minn.Stat. § 390.32, subd. 2(a)) and are recommended in others (Minn.Stat. § 390.32). None of these statutes have anything to do with the statute at issue here. Autopsy reports are: not documents which the law requires to be prepared anticipating contested litigation, not always a thorough medical explanation for what happened, are drawn ex parte, at times consist of only two or three lines in a voluminous hospital/medical report, and often, after further discovery, and/or trial testimony, cannot be relied upon exclusively as a cause of death. Neither plaintiffs nor defendants in medical malpractice suits give a two- or three-line autopsy report that degree of credibility. The district court simply erred by relying on the autopsy and placental pathology reports to act as rebuttal affidavits to Dr. Soderberg, and, to then conclude the affidavits were not sufficiently rebutted.

The district court’s decision, which weighed appellants’ expert affidavit, and respondents’ expert affidavit, medical reports, and the autopsy report, resembled a summary judgment wherein respondents moved for summary judgment, and despite conflicting expert affidavits and despite Minn. R. Civ. P. 56.03 and the supreme court’s ruling in Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (in a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party), the district court granted judgment for respondents. A summary judgment hearing with testimony and opposing testimony is not called for under Minn.Stat. § 145.682 to determine the sufficiency of an expert’s affidavit.

It is clear the district court granted dismissal pursuant to MinmStat. § 145.682, and did not rule on the motion for summary judgment. We note that had the trial court granted summary judgment, it still would have erred. The district court improperly disregarded plaintiffs’ rebuttal affidavit, which was served in opposition to Dr. Lupo’s affidavit. That affidavit directly contradicted the opinions of respondents’ expert, as well as the conclusions in the autopsy and placental pathology reports. The district court ignored plaintiffs’ supplementary affidavit because it was served after the 180 day time period applicable to Minn.Stat. § 145.682. If this had been summary judgment, Dr. Soder-berg’s rebuttal affidavit was timely and relevant. Genuine issues of substantial and material facts exist at this stage and, thus, summary judgment also would have been improper.

DECISION

The district court erred in dismissing appellants’ medical malpractice claim for failure to comply with Minn.Stat. § 145.682, subd. 4(a) (2000). The district court further erred by relying on respondents’ rebuttal affidavit and on autopsy and placental pathology reports to weigh the adequacy of appellants’ expert affidavit.

Reversed and remanded.

APPENDIX

DISTRICT COURT FOURTH JUDICIAL DISTRICT

STATE OF MINNESOTA COUNTY OF HENNEPIN

Mary E. Demgen, individually

and as Trustee for the Next of Kin of

Baby Boy Martin Keller Demgen,

Decedent, and Martin A. Demgen,

Plaintiffs,

v.

Fairview Hospital and Healthcare

Services, a Minnesota non-profit

Corporation d/b/a Fairview-Riverside

Medical Center and a/k/a Fairview-

University Medical Center-Riverside

Campus, Michael Pleasants, M.D.,

Preston Williams, M.D., Margaret

Mesaros, and John Doe and Mary Roe,

Defendants.

State of Minnesota S.S.

County of Hennepin

Case Type: Wrongful Death

Court File No. WD 98-011849

Affidavit of

Douglas Soderberg, M.D.

I, Douglas M. Soderberg, M.D., being first duly sworn upon oath state as follows:

1. I am a board certified in Obstetrics and Gynecology, licensed to practice medicine in the State of Minnesota. Attached hereto as Exhibit A is my curriculum vitae. I am familiar with the medical community and the standard of care in Minneapolis, Minnesota with regard to the practice of Obstetrics. I have been practicing in Obstetrics in this community since July, 1981. I have practical knowledge of what is done in situations described by the medical records of Mary E. Demgen.

2. This Affidavit is made pursuant to Minn.Stat. § 145.682.

3. I have reviewed the medical records of Mary E. Demgen from May 24, 1995 through August 26, 1996, with respect to her intrauterine fetal demise with the Plaintiffs attorneys. Included among those records is a fetal heart monitoring strip dated August 7,1996, which begins at 19:38 and continues to 20:31 (attached hereto as Exhibit B), an “Antepartum Outpatient Evaluation” dated August 7, 1996, which containing the initials “MM” and which indicates it was prepared by Nurse Margaret Mesaros. It includes notations from 19:38 through 22:15 on August 7, 1996, and is attached as Exhibit C.

4. Based upon my review of the above-referenced medical records, the salient facts are summarized as follows:

a. The patient, Mary Demgen, is a 33 year old gravida 3, para 1011 female who presented to her family practitioner for a first obstetrical visit on February 20, 1996. This was a routine visit. The only high risk perinatal factors identified were that of smoking ½ pack of cigarettes/day and a mildly abnormal Pap smear.
b. On April 29, 1996, Mrs. Demgen underwent a Level I ultrasound which revealed oligohydramnios, an ominous finding.
c. On May 6, 1996, a follow-up Level II ultrasound was found to be normal. The previous low amniotic fluid level was felt to be secondary to anterior-posterior uterine compression and the amniotic fluid level was reported as low normal.
d. On August 7, 1996, when she was 35 % weeks gestation, Mrs. Demgen called her physician, Dr. Michael Pleas-
ants, to report decreased fetal movement. She was asked to perform a fetal kick count and then admitted to Fair-view Riverside Medical Center when she continued to note decreased fetal movement.
e. A fetal heart rate tracing begun at 19:38 in the hospital Labor and Delivery suite was, from inception, very abnormal with markedly decreased beat-to-beat variability and no reassuring fetal heart rate accelerations. The strip continues until 20:31, at which time the fetus dies. The medical records indicate that at no time did the nurse comment on the poor heart tracing, nor did she notify anyone else or attempt to assess the status of the fetus in any other way. While Exhibit B includes the notation at 19:50 “Dr. Pleasants called”, there is no information regarding the context of this communication and no indication that this communication resulted in any attempt to use alternative means to assess the status of the fetus.
f. A subsequent bedside ultrasound examination showed no fetal cardiac activity and a diagnosis of intrauterine fetal demise was made.
g. After a long induction, Mrs. Dem-gen delivered a 1930 gram stillborn male on August 15, 1996. Oligohydramnios is diagnosed at the time of delivery.
h. Fetal autopsy and placental examination performed on August 16, 1996 reveal a true knot in the umbilical cord but no other remarkable findings.
i. Some of the medical records comment that Mrs. Demgen’s fetus expired 10 minutes after her arrival at the Labor and Delivery Service. I cannot reconcile this comment with the time frame established in Exhibits B and C.

5.Based upon the facts as stated in Paragraph 4, I conclude, with reasonable medical certainty, as follows:

a. There was a deviation from the standard of care in evaluating the status of Mrs. Demgen’s fetus upon her admission to Fairview Riverside Medical Center Labor and Delivery on August 7, 1996. It is highly unusual for a fetus to die while undergoing fetal heart rate tracing in Labor and Delivery. When the non-reassuring fetal heart rate tracing is indicated at inception of admission, further evaluation should have been performed. The applicable standard of care requires that a doctor be immediately called in to do further testing to assess the status of the fetus. Failing to immediately involve a doctor based on the heart rate tracing present in this case deviated from the standard of care. The fact that the medical records show absolutely no comments on the poor heart tracing or any attempt to assess the status of the fetus in any other manner during the entire period of heart rate tracing indicates a deviation from the applicable standard of care. Nowhere in the medical records is there any evidence that the Labor and Delivery nurse was at all concerned by the very abnormal heart rate tracing, even though the patient had been admitted because of decrease[d] fetal movement. Examination of Exhibit C indicates that the Labor and Delivery nurse was aware that this was the reason for admission.
b. The applicable standard of care under the circumstances of this case would dictate that a fetal acoustical stimulation test or another type of fetal stimulation test or an immediate bedside ultrasound should have been performed.
c. Had the ultrasound test been performed, it would have revealed abnormally low amniotic fluid levels (i.e., the presence of Oligohydramnios). In combination with the markedly abnormal fetal heart rate tracing, this finding would dictate the need for an immediate caesarean section.
d. In a hospital comparable to that at issue, the applicable standard of care would dictate that such an emergency caesarean section be accomplished within 53 minutes, prior to this fetus dying. The failure to have the appropriate tests completed delayed having a caesarean section performed. Failing to have the appropriate tests completed was a direct cause of the fetus’ death. The deviations from the standard of care specified above caused the demise of Mrs. Dem-gen’s fetus.
e.Had such an emergency caesarean section been timely performed, a live birth would have resulted. The applicable standard of care would dictate that the procedures specified above, including delivery by caesarean section, should have been completed prior to the cessation of the fetus’s cardiac activity, as indicated on the monitoring strip.

FURTHER THIS AFFIANT SAITH NOT.

_ffl

Douglas M. Soderberg, M.D.

      . The full text of Dr. Soderberg’s affidavit is set out in the appendix at the end of this opinion.


source: Caselaw Access Project

author: LANSING, Judge

license: Public Domain

text:
    CINCINNATI INSURANCE COMPANY, Appellant, v. Francine FRANCK and Donald Franck, Respondents.
    No. C0-00-1069.
    Court of Appeals of Minnesota.
    Jan. 2, 2001.

      Peter C. Sandberg, Dunlap & Seeger, P.A., Rochester, MN, for appellant.
    Paul R. Dahlberg, Meshbesher & Spence, Ltd., Rochester, MN, for respondents.
    Considered and decided by LANSING, Presiding Judge, PETERSON and STONEBURNER, Judges.
   OPINION

LANSING, Judge

The core issue in this litigation is whether an umbrella-liability insurer has a duty to defend and indemnify its insured when the insured, the primary insurer, and the injured party settle the primary coverage for less than the policy limits. The district court ordered summary judgment against the umbrella insurer, declaring that it was obligated to provide excess coverage for the injured person’s claims that exceeded the primary-coverage limit. Because the injured person has not obtained a judgment in excess of the primary coverage and neither the insured 'nor the primary insurer is a party to this action, the controversy is nonjusticiable and the judgment must be vacated.

FACTS

Joyce Penniston was driving a car owned by her husband, John Penniston, when she struck and injured Franeine Franck. At the time of the accident, the Pennistons’ car was insured by AMICA Mutual Insurance Company with $500,000 in bodily-injury liability coverage and by Cincinnati Insurance Company under an umbrella-liability policy that provided an additional $3 million coverage.

By its written terms, the umbrella policy provided that Cincinnati would pay damages on behalf of the insured, Joyce Penni-ston, over and above the amount provided in the Pennistons’ underlying primary policy. The umbrella policy also stated that Cincinnati would not pay for the costs of any defense that would otherwise be provided in the underlying primary policy, but reserved the right to defend at its option all or any part of a claim.

About one year after the accident, Francine Franck and her husband signed an agreement to settle the primary layer of insurance on the Penniston car for $425,000. This agreement provided that (a) the Francks would satisfy any future judgment against the Pennistons only out of the proceeds of the umbrella policy with Cincinnati Insurance Company, and (b) the $425,000 settlement represented satisfaction of the first $500,000 of the Francks’ claims against the Pennistons. In other words, the Francks fully released AMICA, the Pennistons’ primary insurer, and released the Pennistons up to the limits ($500,000) of their primary-liability coverage and from any liability not covered by insurance. The agreement stated that the parties intended the agreement and release to be governed and construed according to the principles established in Drake v. Ryan, 514 N.W.2d 785 (Minn.1994). The record indicates Cincinnati, the umbrella insurer, was not asked to participate in the settlement negotiations leading to this release, but, under the terms of the release, AMICA undertook to provide the umbrella insurer with reasonable notice of the existence of the agreement.

Two weeks after the release was executed, the Francks contacted Cincinnati to discuss settling the claims against the Pen-nistons. Cincinnati declined to discuss settlement, contending that the umbrella coverage was not triggered because the underlying primary policy limits had not been exhausted, and the settlement voided coverage under the umbrella policy. Cincinnati then brought this declaratory-judgment action solely against the Francks, claiming that the settlement for less than the primary insurer’s policy limit precluded coverage under the umbrella policy. Neither the insureds, Joyce and John Pen-niston, nor the primary carrier, AMICA, were named or joined as parties.

The umbrella carrier moved for summary judgment, claiming that coverage under the umbrella policy could not be reached until the primary limit had actually been paid. The Francks countered that the umbrella policy did not contain an exhaustion clause and that the Drake case approved such a settlement agreement. The district court granted summary judgment for the Francks, declaring that the umbrella insurer was obligated for coverage in excess of the primary insurer’s bodily-injury-liability limit. This appeal followed.

ISSUE

Does an umbrella insurer’s declaratory-judgment action against an injured party present a justiciable controversy when neither its insured nor the primary insurer are parties to the action and the injured party has not obtained judgment in excess of the insured’s primary coverage?

ANALYSIS

The existence of a justiciable controversy is essential to a court’s power to adjudicate. Izaak Walton League of Am. Endowment, Inc. v. State, Dep’t of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977); see also Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1253-54, 108 L.Ed.2d 400 (1990). If the parties to a declaratory action present no justiciable controversy, the court is without jurisdiction to declare rights. St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 587 (Minn.1977). Because an underlying justiciable controversy is essential to a court’s exercise of jurisdiction, the court may always raise the issue on its own motion. Izaak Walton League, 252 N.W.2d at 854; Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 281, 290 N.W. 802, 804 (1940). The existence of jurisdiction is a question of law, subject to de novo review. Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn.2000).

A declaratory action is a justiciable controversy if it (a) involves definite and concrete assertions of right that emanate from a legal source, (b) involves a genuine conflict in tangible interests between parties with adverse interests, and (c) is capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion. See State ex rel. Smith v. Haveland, 223 Minn. 89, 92, 25 N.W.2d 474, 477 (1946); Seiz, 207 Minn. at 281, 290 N.W. at 804; Graham v. Crow Wing County Bd. of Comm’rs, 515 N.W.2d 81, 84 (Minn.App.1994), review denied (Minn. June 2, 1994).

The Minnesota Declaratory Judgment Act gives courts the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Minn.Stat. § 555.01 (1998). Declaratory relief is a unique statutory remedy that serves an “important social function of deciding controversies at their inception.” State Farm Mut. Auto. Ins. Co. v. Skluzacek, 208 Minn. 443, 446-47, 294 N.W. 413, 415 (1940) (citations omitted). Declaratory judgments permit determination of a controversy “before obligations are repudiated or rights are violated,” essentially allowing one who walks in the dark to turn on the light before— rather than after — one steps in a hole. A.L. Loyd v. City of Irwinton, 142 Ga.App. 626, 236 S.E.2d 889, 890 (1977).

As a procedural device, a declaratory action allows for earlier adjudication of a justiciable controversy, but it does not dispense with the necessary elements of justiciability. See Seiz, 207 Minn. at 281-82, 290 N.W. at 804-05; see also Skluzacek, 208 Minn. at 446-47, 294 N.W. at 415 (describing history and purpose of Uniform Declaratory Judgment Act and its adoption in Minnesota). Because the judicial function does not comprehend the giving of advisory opinions, justiciability is necessary in all adjudications. Izaak Walton League, 252 N.W.2d at 854; County Bd. of Educ. v. Borgen, 192 Minn. 512, 517, 257 N.W. 92, 94 (1934) (citation omitted).

In bringing this declaratory-judgment action, the umbrella insurer sued only Francine Franck and Franck’s husband. The umbrella insurer did not include in this action its own policyholders or the primary insurer. On the facts of this case, an action against only the injured party at this stage of the proceedings does not present a justiciable controversy and deprives the court of jurisdiction to enter a declaratory judgment.

First, Cincinnati’s failure to include its own policyholders defeats the requirement that a controversy involve a concrete assertion of legal rights between adverse parties. Minnesota does not have a direct-action statute that allows an injured plaintiff to proceed directly against an insurer. Drake, 514 N.W.2d at 789; Anderson v. St. Paul Fire & Marine Ins. Co., 414 N.W.2d 575, 576 (Minn.App.1987) (outlining history of Minnesota’s common-law rule against direct actions). An umbrella insurer’s duty to defend and indemnify stems directly from a contractual relationship between the insured and the insurer. Thus, even when a settlement purports to eliminate the financial incentive for an insured to defend against the injured party’s tort claim, the insured continues to be the real party in interest. Jostens Inc. v. Mission Ins. Co., 387 N.W.2d 161, 164 (Minn.1986); Anderson, 414 N.W.2d at 576. The Francks could not proceed directly and solely against the Pennistons’ insurer without a judgment against the insureds. See Drake, 514 N.W.2d at 789. The obverse is true as well: an insurer cannot bring an anticipatory declaratory-judgment action only against the injured party. Constitution Assoc. v. New Hampshire Ins. Co., 930 P.2d 556, 562 (Colo.1996). As the Drake court observed, “[b]ecause insurance contracts in Minnesota are contracts of indemnity, * * * [if] an insured tortfeasor is not part of the action to enforce the policy, the lawsuit fails.” 514 N.W.2d at 787-88.

Courts in other jurisdictions have similarly concluded that to declare whether an insurer has the duty to defend and indemnify the insured, the insured must be a party to an action. See, e.g., Travelers Indem. Co. v. Standard Accident Ins. Co., 329 F.2d 329, 331 (7th Cir.1964) (declaratory judgment not proper when one insurer sought declaration against another insurer that it had no duty to defend insured, but insured was not party to action); Farmers Ins. Co. v. Latches, 276 Or. 81, 554 P.2d 169, 171 (1976) (declaratory action to determine whether auto liability insurer had duty to defend properly terminated when insured was not made party to proceeding).

In addition to the insured, the primary insurer may also be essential to the litigation. The absence of the primary insurer may prevent a final determination of the parties’ rights. The Minnesota Declaratory Judgment Act provides that all persons potentially affected by a declaratory action must be made parties to the action:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.

Minn.Stat. § 555.11 (1998) (emphasis added). The joining of all necessary parties allows an efficient and final termination of the controversy. See Minn.Stat. § 555.06 (1998) (court may refuse to enter a declaratory judgment when judgment would not terminate the uncertainty or controversy). Because the declaration cannot bind absent parties, the failure to join necessary parties leaves their rights undetermined.

The primary right to be declared in this litigation is whether an umbrella carrier— with no contractual duty to defend its insured — has a duty to defend and indemnify its insured when the insured, the primary carrier, and the injured party have settled the primary layer of insurance coverage for less than the policy limits. To decide this case on the merits, the court must balance the rights of the injured party, the insured tortfeasor, the primary insurer, and the umbrella insurer. Proper resolution would require consideration of the contractual and policy reasons for extending or not extending the holding and rationale of the Drake case to umbrella carriers. A full resolution would require addressing (1) whether an umbrella insurer must assume the duty to defend when it has no contractual obligation to defend, (2) whether the primary insurer can be relieved of its duty to defend when it has not paid its full policy limits even though it has no remaining interest in the outcome of the underlying lawsuit, (8) whether the umbrella carrier can recover the costs of defense from the primary carrier and/or the insured if it assumes the duty to defend without a contractual obligation to do so, and (4) whether the umbrella carrier must be given notice before the settlement occurs or be given an opportunity to participate in the settlement. See generally Michael M. Marick, Excess Insurance: An Overview of General Principles and Current Issues, 24 Tort & Ins. L.J. 715, 716-19, 721-22, 725-26, 729-30 (1989) (discussing the interplay between primary, excess, and umbrella policies). Because a resolution on the merits would be significantly hampered by the absence of the primary insurer, the court’s power to declare rights and.terminate the controversy is compromised.

Whether the failure to add the primary insurer as a party would affect justiciability and therefore jurisdiction depends on the nature of the rights sought to be declared. Cincinnati’s complaint that the release destroyed its liability suggests issues of bad-faith settlement that may well implicate the primary insurer. See Continental Cas. Co. v. Reserve Ins. Co., 307 Minn. 5, 8, 238 N.W.2d 862, 865 (1976) (holding that excess insurer was subrogat-ed to insured’s rights against a primary insurer because of breach of primary insurer’s good-faith duty to settle).

Minnesota courts have not consistently assigned the same jurisdictional consequences to the failure to add necessary parties as they have to the failure to include an insurance policyholder. In some circumstances, the absence of necessary parties has deprived the district court of jurisdiction to consider and declare rights. See, e.g., Frisk v. Board of Education of City of Duluth, 246 Minn. 366, 382, 75 N.W.2d 504, 514 (1956) (in declaratory judgment action, court had no jurisdiction to consider teachers’ rights to retirement benefits when organization that administered those retirement benefits was not party to proceeding); see also Minneapolis-St. Paul Sanitary Dist. v. City of St. Paul, 231 Minn. 379, 382-83, 43 N.W.2d 219, 221 (1950) (party who has an interest affected by the outcome is a “necessary party” to declaratory action). Other Minnesota cases have addressed the issue as one of due process rather than jurisdiction. See, e.g., Doerr v. Warner, 247 Minn. 98, 103-04, 76 N.W.2d 505, 511 (1956) (footnote omitted); see also State Auto. & Cas. Underwriters v. Lee, 257 N.W.2d 573, 576 (Minn.1977) (declaratory judgment entered and satisfied not void as to parties included in action even when indispensable party not joined).

Depending on the scope of the umbrella insurer’s requested relief, the primary insurer may or may not be a necessary party to the declaratory-judgment action. But to the extent that the umbrella insurer argues that any remaining obligation to indemnify cannot include an obligation to assume the primary insurer’s duty to defend, the rights of the primary insurer are at issue, and full resolution requires the primary insurer’s presence in the action. See Continental Cas., 807 Minn. at 10 n. 6, 238 N.W.2d at 865 n. 6 (drawing analogy to law of contribution and indemnity in discussing remedies when duty foisted on excess insurer not provided for in insurance contract or rate structure).

DECISION

The umbrella insurer’s declaratory-judgment action against the injured party did not present a justiciable controversy because neither the insureds nor the primary insurer were parties to the declaratory action and the injured party has not obtained a judgment against the insureds in excess of the primary coverage.

Judgment vacated.


author: PETERSON, Judge CRIPPEN, Judge

text:
    In re the Marriage of Michael R. BLONIGEN, Petitioner, Respondent, v. Bonnie Jo BLONIGEN, Appellant.
    No. C7-00-1019.
    Court of Appeals of Minnesota.
    Jan. 16, 2001.

      David W. Buchin, Buchin Law Office, St. Cloud, MN, (for respondent).
    Gregory S. Walz, Walz Law Offices, St. Cloud, MN, (for appellant).
    Considered and decided by TOUSSAINT, Chief Judge, CRIPPEN, Judge, and PETERSON, Judge.
   OPINION

PETERSON, Judge

This appeal is from a district court order that modified a child-support magistrate’s order for child support. We affirm.

FACTS

The marriage of appellant-mother Bonnie Jo Blonigen and respondent-father Michael Blonigen was dissolved in 1999 pursuant to a marital-termination agreement that was adopted by the district court. Under the agreement, the parties received joint legal and joint physical custody of their two children, and the issue of child support was reserved. Mother was granted physical custody of the children from Sunday evening through Friday evening during the school year and during the months of June and July. Father was granted physical custody of the children every weekend from Friday evening through Sunday evening and during the month of August.

In February 2000, a hearing was held before a child-support magistrate to determine child support. Following the hearing, the child-support magistrate concluded:

Although the present arrangement of the parties constitutes more than what is typically described as reasonable visitation, [mother] nevertheless maintains primary custody of the children. It is appropriate to calculate [father’s] support obligation utilizing the Minnesota statutory guidelines, but deviating downward to recognize the one month during which [father] has custody of the children.

The magistrate determined that father’s support obligation under the guidelines in Minn.Stat. § 518.551, subd. 5(b) (1998), was $513 per month. The magistrate made a downward deviation from the guideline amount to account for father’s custody of the children during August and ordered father to pay $449 per month in child support.

Father moved for review of the child-support magistrate’s order by the district court. Father requested that the district court adjust his support obligation to reflect the amount of time he had custody of the children. Neither party submitted a transcript of the hearing before the child-support magistrate.

The district court determined that because the parties agreed to joint physical custody in their marital-termination agreement, father was entitled to a child-support offset under the Hortis/Valento formula for determining child support in joint-physical-custody cases. The court found that father has physical custody of the children 33% of the year and mother has physical custody of the children 67% of the year. The court determined the child-support obligations of both parties under section 518.551, subdivision 5(b), applied an offset for each party according to the amount of time each has custody of the children, and ordered father to pay mother $208.79 per month in child support.

Mother moved to have the district court reconsider its findings of fact, conclusions of law, and order. The district court denied mother’s motion to reconsider and stated that under Minn. R. Gen. Pract. 372.05, subd. 5, it was authorized to modify the child-support magistrate’s order upon motion by a party.

ISSUES

I.Did the district court owe any deference to . the child-support magistrate when reviewing the magistrate’s order under Minn.R.Gen.Pract. 372.05, subd. 2?

II. Did the district court err when it determined that the parties have joint physical custody of their children, and therefore, that father’s child support obligation should be determined using the Hortis/Valento formula?

III. Was the district court required to review a transcript of the hearing before the child-support magistrate when reviewing the magistrate’s order?

IV. Did the district court correctly apply the Hortis/Valento formula?

ANALYSIS

I.

Mother argues that the district court’s reduction of child support was improper because the district court did not address the magistrate’s conclusion that mother maintains primary custody of the children. Mother characterizes the magistrate’s conclusion as a determination that the custody arrangement is, in essence, a sole-physical-custody arrangement. She contends that the district court should not have rejected this determination without addressing the magistrate’s findings regarding where the children live and who has physical custody during the relevant times.

Under Minn.R.Gen.Pract. 372.01,

[a]ny party may bring a motion for review of the decision and order or judgment of the child support magistrate. ⅜ * * At the request of either party, the motion for review may be brought before either the child support magistrate who issued the order or a district court judge.

On review,

[t]he child support magistrate or district court judge must make an independent review of any findings or other provisions of the child support magistrate’s decision and order for which specific changes are requested in the motion. The child support magistrate or district court judge may approve or modify the decision and order of the child support magistrate, or may remand the matter to the child support magistrate with instructions. If any findings or other provisions of the child support magistrate’s decision and order are approved without change, the child support magistrate or district court judge must specifically state in the order that those findings and other provisions are affirmed but need not make specific findings or conclusions as to each point raised in the motion. If any findings or other provisions of the child support magistrate’s decision and order are modified, the child support magistrate or district court judge need only make specific findings or conclusions with respect to the provisions that are modified.

Minn.R.Gen.Pract. 372.05, subd. 2 (emphasis added).

“Independent” means, “Free from the influence, guidance, or control of another or others; self-reliant.” The American Heritage Dictionary of the English Language 917 (3rd ed.1992). Thus, the requirement that the district court make an independent review of findings and provisions in the magistrate’s decision means that the district court was to make its review free from the influence, guidance, or control of the magistrate. The district court was not required to act with deference to the magistrate and was free to reach its own conclusion with respect to the proper characterization of the parties’ custody arrangement. In short, the district court was to review the magistrate’s decision de novo. See Tri-State Land Co. v. City of Shoreview, 290 N.W.2d 775, 776 (Minn.1980) (holding that trial court erred in not affording appellant “a de novo or independent review of its claim”). Mother’s contention that the district court improperly rejected the magistrate’s characterization of the custody arrangement without addressing the magistrate’s findings incorrectly assumes that the district court was to act with deference to the magistrate.

Under Minn.R.Gen.Pract. 372.05, subd. 2, the district court was required to address individual findings or provisions of the child support magistrate’s decision only if the court approved or modified a finding or provision. This simply means that findings of the magistrate that are not approved or modified by the district court do not become part of the district court’s decision.

The district court specifically stated in its order that it affirmed the child support magistrate’s findings regarding the income of each of the parties and the finding that father’s child support obligation under Minn.Stat. § 518.551, subd. 5(b), is $513.00 per month. The court made independent findings regarding the amount of time each of the parties has physical custody of the children when it found that father has physical custody 33% of the time and mother has physical custody 67% of the time. The court also found:

The parties’ Marital Termination Agreement, adopted by this Court, provided for joint legal and joint physical custody of the parties’ two minor children. As Such, [father] is entitled to child support offset under the Hor-tis/Valento formula for determining child support in joint physical custody cases.

Based on these findings, the district court calculated father’s child support obligation using the Hortis/Valento formula.

II.

Mother argues that when viewed as a whole, the terms of the dissolution judgment do not support the district court’s conclusion that the parties share joint physical custody of their children. We disagree.

The rules of contract construction apply when construing a stipulated provision in a dissolution judgment. In re Estate of Rock, 612 N.W.2d 891, 894 (Minn.App.2000). Under those rules, the court must consider the stipulation as a whole to determine whether an ambiguity exists. In re Complaint of Info Tel Communications, LLC v. U.S. West Communications, Inc., 592 N.W.2d 880, 884 (Minn.App.1999), review denied (Minn. July 28, 1999). If no ambiguity exists, interpretation is a question of law subject to de novo review. Stowell v. Cloquet Co-op Credit Union, 557 N.W.2d 567, 571 (Minn.1997).

Parties will be bound by a stipulated custody arrangement:

Custody provisions contained in a stipulated decree must be accorded a good deal of deference, in that they represent the terms specifically agreed to by the parties and adopted by the court. Where * * ⅜ the parties have agreed, by stipulated decree, to joint legal custody and joint physical custody, and the court has accepted that denomination, the parties will be bound by it.

Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn.1993).

The dissolution judgment, which was based on the parties’ marital-termination agreement, states:

The parties are hereby granted joint physical custody of the children according to the following schedule:
a)During the school year and the summer months of June and July, the children shall reside primarily with [mother]. The children shall be with [mother] from Sunday evening through Friday evening during the school year. The children shall reside with [father] every weekend from Friday evenings until Sunday evening.
b) During the summer month of August the children shall reside with [father],
c) The parties shall alternate legal holidays and birthdays of the minor children. For those holidays which fall on a Friday, Monday, or a weekend, the parent with the care of the children for the holiday shall also have the children on that weekend, but if this disrupts the regular non-holiday weekend rotation, then the parent whose weekend is disrupted shall have the next weekend with the children.

“ ‘Joint physical custody’ means that the routine daily care and control and the residence of the child is structured between the parties.” Minn.Stat. § 518.003, subd. 3(d) (1998).

Joint physical custody does not require an absolutely equal division of time; rather, it is only necessary that physical custody of the child be the shared responsibility of the parties.

Hegerle v. Hegerle, 355 N.W.2d 726, 731-32 (Minn.App.1984).

The district court did not err when it determined that the parties share joint physical custody of their children. The parties chose to describe the custody arrangement in their marital-termination agreement as joint physical custody, and under the agreement, the routine daily care and control and residence of the children is structured between the parties. The fact that the children spend two thirds of their time at mother’s home and one third of their time at father’s home and, therefore, that mother’s home can be considered to be their primary residence, is not a sufficient basis for us to conclude that the custody arrangement is not joint physical custody. See Ayers, 508 N.W.2d at 519-20 (appellate court bound by joint-physical-custody label even though stipulation structured so that children resided primarily with one parent).

III.

Mother argues that the district court improperly modified the child support magistrate’s decision without reviewing the transcript of the hearing before the child support magistrate. Minn. Rule Gen. Pract. 372.05, subd. 5, provides:

A transcript of the hearing in dispute is not required, but may be ordered by a party. If the party chooses to submit a transcript, it must be ordered according to the procedure in Rule 373. If a party orders a transcript, the motion must state the date the transcript was ordered.

Although either party could have chosen to submit a transcript of the hearing before the magistrate, neither party chose to do so. Because neither party chose to submit a transcript, the district court did nothing improper when it reached its decision without reviewing a transcript.

IV.

Mother argues that the district court incorrectly applied the Hortis/Valen-tó formula to determine father’s support obligation because it incorrectly calculated the amount of time she and father have custody of the children. We disagree. Child support matters are within the district court’s discretion, and its decision will not be reversed absent a clear showing of an abuse of discretion. Reck v. Reck, 346 N.W.2d 675, 677 (Minn.App.1984).

Application of the Hortis/Va-lento formula “should be used in all joint physical [custody] cases.” Tweeton v. Tweeton, 560 N.W.2d 746, 748 (Minn.App.1997) (quotation omitted), review denied (Minn. May 28, 1997). The formula requires a parent to pay the child support amount indicated by the guidelines only during the periods of time that the other parent has custody of the children. Id. at 747; Valento v. Valento, 385 N.W.2d 860, 862 (Minn.App.1986), review denied (Minn. June 30,1986). “The court then applies an offset so that the net paid by the parent with the higher earnings is the difference between the reduced guidelines amounts.” Tweeton, 560 N.W.2d at 748 (citing Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn.App.1985) (offsetting the smaller obligation of one parent against larger obligation of other parent)).

Father’s child-support obligation was determined based on the district court’s finding that he has custody of the children 33% of the time, which is 120 days per year. Mother argues that father does not have custody 33% of the time. The district court did not explain how it determined that father has custody 33% of the time. But the dissolution judgment grants father custody of the children “[d]uring the school year and the summer months of June and July * * * every weekend from Friday evenings until Sunday evening.” This means that father has the children every weekend during 11 out of 12 months each year. There are generally 104 weekend days in a year or, on average, eight and two-thirds weekend days per month. This means that father has the children for slightly more than 95 weekend days per year. In addition, father has the children during the month of August. The dissolution judgment does not indicate that mother has the children on the weekends in August, but even if we assume that she does, father has the children for at least 22 days in August. This means that father has the children for at least 117 days each year on weekends and during August. Father also has the children on alternating holidays and birthdays, and although the number of days this entails will vary from year to year, it will add to the total number of days father has the children each year. Consequently, the children will reside with father for more than 117 days each year. We, therefore, conclude that the district court did not err when it calculated father’s child support obligation based on its conclusion that father has custody of the children 33% of the time.

DECISION

When reviewing the child-support magistrate’s order, the district court did not owe any deference to the child-support magistrate. The district court was not required to review a transcript of the hearing before the child-support magistrate. The district court did not abuse its discretion when it determined that the child-custody arrangement the parties agreed to is joint physical custody. The district court did not incorrectly determine the amount of time that father has custody of the children.

Affirmed.

CRIPPEN, Judge

(dissenting)

No doubt the labeling of physical custody as “joint” has emotional impact, good or bad, for some parents. But as defined by Minnesota statute, the legal impact of the label is at best meaningless. At worst— whenever the courts give weight to its use — it is a persistent source of injustice. That is the case in this matter.

The label “joint physical custody” can be used indiscriminately as a substitute for sole custody with visitation. The statute provides: “ ‘Joint physical custody’ means that the routine daily care and control and the residence of the child is structured between the parties.” Minn.Stat. § 518.003, subd. 8(d) (2000). Nothing in the law precludes a 90%/10% care-sharing arrangement with the label “joint.”

Use of the label may give a benefit where none is justified. The Hortis decision recognized that when a joint-custody arrangement results in each parent being a noncustodial parent for six months of the year, that parent should pay child support only during those six months when the child resides with the other parent. Hortis v. Hortis, 367 N.W.2d 633, 635 (Minn.App.1985). Even in Valento, where we said that the same method should be used to calculate support in all joint custody situations, the parents divided physical care 57%/43%. Valento v. Valento, 385 N.W.2d 860, 862 (Minn.App.1986), review denied (Minn. June 30, 1986); see also Rumney v. Rumney, 611 N.W.2d 71, 75 (Minn.App.2000) (adopting a “nearly equal” amount of physical care standard for applying the Hortis/Valento formula and rejecting application of the standard for a 61%/39% arrangement).

The majority opinion disregards the potential injustice of using the Hortis/Valento formula in situations of unequally shared care. Are there considerations that outweigh this risk? The majority finds it important that the parties are free to negotiate an agreement with the knowledge of its consequences. Would the injustice of an inappropriate application of Hor-tis/Valento be overcome by the importance of having an inflexible rule on the subject?

In fact, upholding the freedom for negotiation of the parties increases the potential for injustice. The Hortis/Valento formula becomes a bargaining chip that is not apt to be corrected by the trial courts. Parties in negotiations can evade the guidelines by tying threats or promises to demands for the joint-physical-custody label. A party is free to demand concessions in exchange for a guidelines support obligation or, worse, exchange threats for litigation of claims for an artificial joint-physical-custody designation.

The use of labels that have automatic, peculiar consequences leads to destruction of the underlying aims of child-support law, including the statutory guidelines. Recognizing the injustice of labels from the vantage point of a noncustodial parent with shared custody, we have applied the Hortis/Valento formula even though one parent was designated sole physical custodian. Tweeton v. Tweeton, 560 N.W.2d 746, 748-49 (Minn.App.1997), review denied (Minn. May 28, 1997). We also employed the endangerment standard on a custody-modification proposal when a parent, who was designated the sole physical custodian, wished to substantially restructure an equally shared custody arrangement by moving the children several miles away and to a new school district.. Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn.App.1992). We should be equally diligent in diminishing the significance of the joint-physical-custody label for the sake of an appropriate guidelines determination.

Tweeton and similar decisions cannot be read without appreciating the recognition given to labels in some cases. But none of these seemingly conflicting holdings, none of which bear directly on the issue of child support, justifies disregarding the evidence of a pattern of caretaking that materially conflicts with the label used in a judgment. See Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (Minn.1999) (following the statutory standard for the sole-physical-custody label employed in the termination agreement, yet not precluding application of a different standard for a showing of de facto joint physical custody); Silbaugh v. Silbaugh, 543 N.W.2d 639, 641-42 (Minn.1996) (enlarging the consequences of a sole-physical-custody arrangement because of the label in circumstances where there was no evidence of a claim of shared or nearly shared care). Singularly, Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn.1993), upholds the significance of a label somewhat at odds with the real custody arrangement in the case — the joint-physical-custody label where one parent evidently was twice as active in caretaking. Ayers permits use of the best-interests standard for the opponent of a proposed move of the children to another state. Id. The breadth of the holding is limited because the decision is pointedly aimed at the important child-custody goal of protecting the children’s relationships with each parent.

I further hazard the observation that our application of statutory law in this case has constitutional implications. The decision to adhere to the labels in this case lends itself to an equal-protection challenge. The equal-protection clause requires that “persons similarly situated be treated similarly” unless the distinction serves a legitimate governmental interest. Lidberg v. Steffen, 514 N.W.2d 779, 784 (Minn.1994) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982)); LaChapelle v. Mitten, 607 N.W.2d 151, 165 (Minn.App.2000), review denied (Minn. May 16, 2000). First, the distinction treats similarly situated persons differently: both groups provide the same pattern of care for their children and are obligated by court order to support those children, but different standards apply to caretakers denominated as joint-physical custodians and those denominated as noncustodians. Second, there is no reasonable basis for the distinction based on necessity or circumstances because the children would need the same amount of support regardless of the legal category their parents fit into. Third, although the labeling distinction may be germane to the purpose of the law in cases where a noncustodial parent provides equal care for the child, it serves no distinctive need under other circumstances. The law may be unconstitutional and void in its application to some but constitutional as to others. Cf. City of St. Paul v. Dalsin, 245 Minn. 325, 330-31, 71 N.W.2d 855, 859 (1955) (“A legislative act may be unconstitutional and void in its application to some persons or separable subject matters and constitutional as to others.”).

Because the child-support magistrate correctly elevated substance over form, a result the trial court should have applied to justly and lawfully decide the case, I respectfully dissent.

      . The Interim Expedited Child Support Process Rules, which were adopted by order of the Minnesota Supreme Court on June 23, 1999, applied to this proceeding when it was before the district court. By court order on December 17, 1999, those rules were codified as rules 351 to 375 of the General Rules of Practice for the District Courts. The June 23, 1999, order that adopted the Interim Expedited Child Support Process Rules, provides that the interim rules remained in effect through June 30, 2000.

      . The court also made a finding that corrected an error in the caption of the magistrate’s order.

      . However defined or used, the label is often flawed in its focus on the rights of parents to the exclusion of the best interests of the child. For this reason and others, the legislature has adopted a concept that focuses on actual care of the child, a plan for parenting that employs no labels. Minn.Stat. § 518.1705 (2000).

      . Valento must be read cautiously insofar as it suggests rote application of the joint-physical-custody standard in cases where shared care is unequally divided. Taken to its logical and unjust extreme, Valento could stand for the proposition that the court must apply the Hortis/Valento formula when parties designated as joint custodians split custody 90%/10%.

      . In contrast, this court has previously elevated form over substance and applied the endangerment standard to a custody-modification case because of the sole-physical-custodian label in a situation where the parent opposing removal of the child from the state was a de facto joint-physical custodian. Wilson v. Wilson, No. C6-97-562, 1997 WL 559735, at *5-8 (Minn.App. Sept.9, 1997) (Crippen, J., dissenting).


text:
    In the Matter of the CONSERVATORSHIP OF Colleen Ann GELDERT, Proposed Conservatee, and In the Matter of the Mental Deficiency of Colleen Ann Geldert, Ward.
    No. C3-00-921.
    Court of Appeals of Minnesota.
    Jan. 23, 2001.
    Review Denied March 27, 2001.
    David L. Kraker, David L. Kraker & Associates, Minneapolis, MN, for appellant Geldert.
    Amy Klobuchar, Hennepin County Attorney, Lisa C. Hahn-Cordes, Assistant County Attorney, Minneapolis, MN, for respondent Louise Ouradnik as agent of the Commissioner of Human Services.
    Roger C. Clarke, Minneapolis, MN, for petitioner Lucy Melena.
    Considered and decided by PETERSON, Presiding Judge, LANSING, Judge, and STONEBURNER, Judge.
   OPINION

LANSING, Judge

Colleen Ann Geldert is a mentally retarded adult who has been a ward of the Commissioner of Human Services since 1958. Geldert suffers from end-stage renal failure caused by polycistic kidney disease. Dialysis is the only treatment option available to Geldert at this time. In December 1999, Geldert’s sister, who believes dialysis is not in her sister’s best interests, petitioned to be appointed general conservator of Geldert’s person for the express purpose of preventing her from undergoing dialysis. Geldert appeals from an order discharging the Commissioner of Human Services as guardian and appointing her sister as general conservator. We reverse and remand.

FACTS

Colleen Ann Geldert has been a ward of the Commissioner of Human Services for the past 42 years. Geldert has the intellectual abilities of a first- or second-grader and requires supervision 24 hours per day. Although Geldert is unable to make informed choices about medical treatment, she has expressed thoughts and ideas that indicate she understands the difference between life and death and, on two occasions, has expressed the desire to live. Geldert lives at Dungarvin, a group home for disabled adults.

Geldert suffers from Prader Willi Syndrome (PWS). PWS is a disorder that prevents satiety. Persons afflicted with PWS, including Geldert, suffer from a range of behavioral difficulties including food seeking, aggression, obsessive-compulsive behavior, and problems with transitions and unanticipated changes. To manage Geldert’s behavioral difficulties, the Dungarvin staff successfully implemented a positive-reinforcement plan that rewards Geldert for good behavior on an hourly basis. Geldert has not exhibited inappropriate aggressive behavior for some time.

Despite suffering from PWS, Geldert leads a full and active life, made possible in large part by Dungarvin’s careful programming and well-trained staff. She participates in church events and goes to Sunday school. She enjoys bingo, bowling, movies, shopping, and going to casinos. She also enjoys puzzles and card games. She is friendly and talkative. She works as a housekeeper at a Super 8 Motel. She takes directives well and is considered a good worker. She likes and takes pride in her job.

In addition to PWS, Geldert suffers from end-stage renal failure caused by po-lycistic kidney disease. Geldert’s illness is fatal without dialysis or a kidney transplant. Geldert’s mother, brother, and two sisters, who have maintained contact with her through the years and have shown an unwavering commitment to her well-being, oppose dialysis as a treatment option. Geldert’s family fears that dialysis will prevent Geldert from continuing to enjoy her daily life and will cause her to revert to aggressive behavior. Geldert’s doctors believe that dialysis is a reasonable approach to Geldert’s illness from a medical standpoint, but recognize that whether dialysis is in Geldert’s best interests cannot be determined with any degree of certainty until dialysis is tried.

In an effort to foreclose dialysis as a treatment option, Lucy Melena, Geldert’s older sister, petitioned to become conservator of Geldert’s person. The district court granted Melena’s petition, reasoning that Geldert’s best interests would be served by the appointment of Melena as conservator of Geldert’s person and that the public guardianship was no longer necessary because an acceptable alternative was available. On appeal, Geldert claims the district court abused its discretion (1) in terminating the state’s guardianship without a finding that the state has failed to perform the duties associated with the guardianship or to provide for her best interests, and (2) in finding that her interests will be better served by her sister as conservator, even though her sister’s appointment precludes dialysis as a treatment option for Geldert.

ANALYSIS

The district court has the authority to remove a guardian or conservator and to appoint a new guardian or conservator. Minn.Stat. § 525.61, subd. 3 (1998). The appointment of a conservator is a matter within the district court’s discretion and will not be disturbed absent a clear abuse of that discretion. In re Guardianship of Stanger, 299 Minn. 213, 215, 217 N.W.2d 754, 755 (1974); In re Guardianship of Dahmen’s, 192 Minn. 407, 410, 256 N.W. 891, 893 (1934). The removal of a guardian or conservator is also a matter within the district court’s discretion. See In re Conservatorship of Kocemba, 429 N.W.2d 302, 307 (Minn.App.1988) (stating trial court has discretion in appointing successor conservator).

When considering whether to remove a guardian or conservator, the district court must consider “whether the existing guardian or conservator has performed the applicable duties and whether the continued appointment of the guardian or conservator is in the best interests of the ward or conservatee.” Minn.Stat. § 525.61, subd. 3. The court must appoint a new guardian if it finds that (1) the existing guardian has failed to perform the duties associated with the guardianship or to provide for the best interests of the ward, and (2) the ward’s best interests will be better served by the appointment of a new guardian. Id.

Geldert has been a ward of the Commissioner of Public Health since 1958. In removing the commissioner as guardian, the district court did not consider, as Minn.Stat. § 525.61, subd. 3, requires, whether the commissioner had failed to perform the duties associated with the guardianship or to provide for Geldert’s best interests. Instead, the court applied the standard for appointing a guardian in the first instance, rather than the standard for removing an existing guardian and appointing a successor, and found only that Melena’s appointment was in Geldert’s best interests and that the public guardianship was no longer necessary because an acceptable alternative was available.

Melena argues that the court’s failure specifically to consider Minn.Stat. § 525.61, subd. 3, is irrelevant because Minn.Stat. § 525.61 applies only to private guardianships created under Minn.Stat. §§ 525.539-.705 (1998). Public .guardian-ships, Melena claims, are governed by the provisions of the Minnesota Mental Retardation Protection Act (MRPA), Minn.Stat. §§ 252A.01-.21 (1998). For two reasons, we disagree.

First, Minn.Stat. § 525.61, subd. 3, does not contain the limitation Melena proposes. It applies to the removal of “a guardian or conservator and [the appointment of] a new guardian or conservator.” Minn.Stat. § 525.61, subd. 3. We decline to read a limitation into the statute that is neither expressly stated nor reasonably implied. Had the legislature intended to limit the application of the statute to private guardianships only, it could have done so. Second, the supreme court has held that despite the adoption of the MRPA, a public guardianship continues until it is terminated under the provisions of Minn. Stat. § 525.61. In re Blilie, 494 N.W.2d 877, 880 (Minn.1993). Similarly, in this case, Geldert’s public guardianship continues until it is terminated under the provisions of Minn.Stat. § 525.61, subd. 3.

We recognize that public guardianship is viewed as the most restrictive form of guardianship and, as a matter of policy, should be imposed only when no other acceptable alternative is available. Minn. Stat. § 252A.01, subd. l(2)(b); see also Minn.Stat. § 252A.0B, subd. 4 (directing commissioner to seek nonpublic guardians for developmentally disabled persons currently under public guardianship). But once a public guardianship has been established, the reasons for removal are a central consideration under Minn.Stat. § 525.61, subd. 3.

Because whether the Commissioner of Public Health failed to perform the duties associated with the guardianship or to provide for Geldert’s best interests is a question for the district court in the first instance, we reverse and remand. The remaining issues Geldert raises involve significant public-policy concerns Minnesota courts have not previously addressed. But we decline to address them at this point, pending a determination by the district court on whether the state failed to perform the duties associated with the guardianship or to provide for Geldert’s best interests.

DECISION

The district court abused its discretion in terminating the state’s guardianship without a finding that the state failed to perform the duties associated with the guardianship or to provide for Geldert’s best interests.

Reversed and remanded.