author: MEYER, Justice. PAGE, Justice

text:
    Kimberly A. MOLLOY, et al., Respondents, v. Diane M. MEIER, M.D., et al., Appellants, Reno E. Backus, M.D., et al., Appellants, North Memorial Health Care d/b/a North Memorial Medical Center, Defendant.
    Nos. C9-02-1821, C2-02-1837.
    Supreme Court of Minnesota.
    May 20, 2004.

      David D. Alsop, Laura J. Myslis, Gisla-son & Hunter, LLP, Minnetonka, MN, for Appellants, Reno E. Backus, M.D., Kathryn H. Green, M.D., and Minneapolis Clinic of Neurology, Ltd.
    Katherine A. McBride, Barbara A. Zu-rek, William M. Hart, Meagher & Geer, PLLP, Minneapolis, MN, for Appellants, Diane Meier, M.D. and Partners in Pediatrics, Ltd.
    Terry L. Wade, Wendy J. Zeller, Anne E. Workman, Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, for Respondent, Kimberly A. Molloy.
    Richard J. Thomas, Chad J. Hintz, Burke & Thomas, PLLP, New Brighton, MN, for Amicus, Physician Insurers Association of America.
    Rebecca Egge Moss, Charles E. Lund-berg, Tiffany M. Quick, Bassford, Remele, PA, Minneapolis, MN, for Amici, Minnesota Medical Association, Minnesota Hospital Association, Minnesota Medical Group Management Association, and American Medical Association.
   OPINION

MEYER, Justice.

Kimberly Molloy (Molloy) and her husband, Glenn Molloy, brought a medical malpractice action against appellants Dr. Diane Meier, Dr. Reno Backus, and Dr. Kathryn Green, claiming they were negligent in failing to diagnose a genetic disorder in Molloy’s daughter and their negligence caused Molloy to conceive another child with the same genetic disorder. The district court denied the appellants’ motion for summary judgment and concluded that a physician who performs genetic tests on a child owes a.duty to the biological parents of that child; that the action did not accrue until the time of conception and, therefore, was not time-barred; and that the action was not barred by Minn.Stat. § 145.424 (2002), which prohibits causes of action for wrongful birth and wrongful life. The court of appeals answered three certified questions and upheld the denial of summary judgment. We granted review and now affirm the court of appeals.

This case arises out of the medical treatment of S.F., the daughter of Kimberly Molloy and her ex-husband, Robert Flomer. As a young girl, S.F. was treated by appellant Dr. Diane M. Meier at Partners

in Pediatrics (formerly Oakdale Pediatrics). When S.F. was three years old, Dr. Meier noted during a check-up that S.F. was developmentally delayed. Dr. Meier ordered a number of tests, but the results did not reveal the source of S.F.’s difficulties. On May 18,1992, Dr. Meier met with Molloy, Robert Flomer, and S.F. to discuss the possible causes for S.F.’s developmental delays, including the possibility of a genetic cause. Molloy told Dr. Meier about Molloy’s mentally retarded half-brother and asked Dr. Meier to conduct genetic tests on S.F. to determine whether S.F. had inherited any abnormalities from Molloy.

In her notes from the May 18 visit, Dr. Meier wrote “? chromosomes + fragile X,” which meant she intended to order chromosomal testing and testing for Fragile X syndrome. In May of 1992, a Fragile X chromosomal test capable of diagnosing the disorder with 70 to 80 percent accuracy was in widespread use. A parent who is a carrier of Fragile X has up to a 50 percent chance of giving birth to a child with the condition. Although physicians can treat the symptoms of Fragile X, the condition itself is incurable. Dr. Meier conceded that “it was appropriate to test [S.F.] for [FJragile X in keeping with accepted standards of pediatric practice on May 18, 1992.” According to Molloy, Dr. Meier told her that if S.F. tested positive for a genetic disorder, Molloy should be tested herself.

On June 17, 1992, the chromosome testing ordered by Dr. Meier was performed at North Memorial Medical Center. On July 18, 1992, North Memorial’s laboratory reported normal chromosome testing for S.F. Dr. Meier received the test results, telephoned the Flomers and informed them that the test results were negative; i.e., normal. However, Dr. Meier failed to mention that Fragile X testing had not been performed. The Flomers then informed Molloy that the test results were “normal.” Based on the fact that Dr. Meier had mentioned Fragile X in her discussion of chromosomal testing, Molloy assumed that the negative test results included a negative result for Fragile X.

Meanwhile, on June 23, 1992, S.F. was referred by Dr. Meier to the Minneapolis Clinic of Neurology where she was seen by Dr. Reno Backus. Dr. Backus testified in his deposition that his role was to evaluate S.F. and report back to Dr. Meier, the referring physician. Dr. Backus met with S.F., Molloy, and the Flomers, and diagnosed S.F. with a pervasive developmental delay of unknown origin. Molloy inquired about her chances of conceiving another child with S.F.’s defect. According to Mol-loy, Dr. Backus responded that S.F.’s problems were not genetic in origin and the risk that Molloy might give birth to another child like S.F. was extremely remote, especially with a father other than Robert Flomer. Dr. Backus was aware that chromosomal testing had been done but he made his assessment before the test results were known.

Several years later S.F. was referred to Dr. Kathryn Green, who was an employee of the Minneapolis Clinic of Neurology. When Dr. Green saw S.F. on April 30, 1996, she had the office chart of Minneapolis Clinic, including Dr. Backus’s 1992 report. There were no Fragile X testing results in the chart because the testing had never been done. Dr. Green knew of Molloy’s mentally retarded half-brother who had exhibited problems similar to S.F.’s. Despite having this information, Dr. Green did not order or recommend Fragile X testing. Dr. Green testified that she recognized the importance of Fragile X testing in general, but she assumed such tests had already been performed on S.F. and had come back negative, as S.F. had already seen three physicians.

In the meantime, Molloy remarried and gave birth to M.M. on June 30, 1998. M.M. showed signs of the same developmental difficulties as S.F., so his pediatrician, Dr. David Tilstra, ordered Fragile X testing for him. The Fragile X test results were positive; i.e., M.M. carried the Fragile X genetic disorder. When Dr. Tilstra received the positive results, he counseled Kimberly and Glenn Molloy about Fragile X syndrome and recommended that they and other potentially affected family members receive testing. Based on Dr. Tilstra’s recommendation, S.F. and Kimberly Molloy were tested for Fragile X, and it was discovered that they both carried the genetic disorder.

Molloy commenced this lawsuit on August 23, 2001, alleging that Drs. Meier, Backus, and Green and their employers were negligent in the care and treatment rendered to S.F., Kimberly Molloy, and Glenn Molloy by failing to order Fragile X testing on S.F., failing to properly read those lab tests that were performed, mistakenly reporting that S.F. had been tested for Fragile X, and failing to provide counseling to Kimberly and Glenn Molloy regarding the risk of passing an inheritable genetic abnormality to future children. Molloy claimed she would not have conceived M.M. if Drs. Meier, Backus, and Green had correctly diagnosed S.F. with Fragile X and informed Molloy of the diagnosis.

Drs. Meier, Backus, and Green and their employers moved for summary judgment, arguing that they did not owe a duty to the family of a patient and that, in any event, Molloy’s action was barred by the four-year statute of limitations for medical malpractice claims. In opposition, Molloy presented expert testimony of a pediatrician and a pediatric neurologist who described the prevailing standard of care in the medical community with respect to testing and counseling for genetic disorders. The experts indicated that a patient who exhibits the symptoms of this disorder with a family history of mental retardation should be tested for Fragile X. Further, a physician who identifies the possibility of Fragile X has a responsibility to follow up to confirm that the tests are performed. Finally, the physician of a child with Fragile X has an obligation to provide genetic counseling to the child’s family.

In deposition testimony, the appellants each somewhat confirmed the standard of care described by Molloy’s expert witnesses. Dr. Meier admitted that her practice is to communicate the results of Fragile X testing to the child’s “primary” parents and inform them that the condition may be inherited. Dr. Backus acknowledged that Fragile X testing would have been appropriate for a child such as S.F. and that diagnoses of diseases such as Fragile X have implications for the entire family. Dr. Green conceded that a physician should share the genetic implications of positive genetic test results with the parents of a child diagnosed with an inheritable disorder.

The district court denied summary judgment, concluding that the defendants owed a duty to the biological parents of the child, the cause of action was not barred by the four-year statute of limitations, and a claim for wrongful conception was permitted under MinmStat. § 145.424. Subsequently, the district court certified the following questions to the court of appeals as “important and doubtful” under Minn. R. Civ.App. P. 103.03(i).

(a) Does a physician who allegedly fails to test for and diagnose a genetic disorder in an existing child leading to the birth of a subsequent child with that disorder owe a legal duty to the child’s parents?
(b) When does the statute of limitations begin to run pursuant to MinmStat. § 541.076 (2002) in a parents’ medical negligence claim alleging failure to test for and diagnose a genetic disorder in an existing child leading to the birth of a subsequent child with that disorder?
(c) Does MinmStat. § 145.424 prohibit parents from bringing an action alleging that they would not have conceived the subsequent child described in question (b)?

The court of appeals answered the first certified question in the affirmative: the appellants owed a legal duty to Molloy because appellants “should have foreseen that negligently rendering care to S.F. or erroneously reporting genetic test results to S.F.’s biological parents could result in the birth of another child with fragile X.” Molloy, 660 N.W.2d at 452. The court of appeals answered the second certified question by concluding that the statute of limitations began to run at the time of M.M.’s conception, the point at which Mol-loy could establish damages and a viable cause of action in tort. Id. at 455. In answering the third certified question, the court concluded that Molloy’s action was not barred by Minn.Stat. § 145.424 because she did not claim that, but for the negligence of the appellants, M.M. would have been aborted.

I.

We begin by addressing the first certified question, whether the appellants owed a duty to Molloy regarding the genetic testing and diagnosis of S.F. for Fragile X syndrome. When we review certified questions arising from the denial of summary judgment, we must decide “whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law.” Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998) (quoting Art Goebel, Inc. v. North Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn.1997)). The existence of a duty in a negligence case is a question of law. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001). We consider the evidence in the light most favorable to the nonmoving party. Gradjelick v. Hance, 646 N.W.2d 225, 231 (Minn.2002).

Molloy advances two legal theories. She first argues that a physician-patient relationship existed between her and the appellants that gave rise to a legal duty to warn her about the risks of becoming pregnant as a carrier of Fragile X. Additionally, citing Skillings v. Allen, 143 Minn. 323, 173 N.W. 663 (1919), Molloy urges this court to hold that even if a physician-patient relationship cannot be established, a physician’s duty to warn others of a patient’s genetic disorder arises from the foreseeability of injury.

The appellants argue that their duty is owed only to S.F., the person with whom they had a physician-patient relationship. The appellants claim that they met with S.F. solely for S.F.’s own benefit and not for the benefit of her family. If any duty extended beyond the minor patient, the appellants argue that it should reach only those parties who have a contractual relationship with the physician, in this case the Flomers, S.F.’s custodial parents.

The question of whether a physician owes a duty to inform a child’s family about the genetic implications of a child’s genetic disorder is one of first impression in Minnesota. A medical malpractice action is based on principles of tort liability for negligence; the existence of a duty running to the plaintiff is a prerequisite to a finding of negligence. See Plutshack v. Univ. of Minn. Hosps., 316 N.W.2d 1, 8 (Minn.1982).

We begin our analysis by observing that a duty to a third party who is not a patient of the physician has been recognized in only a few Minnesota cases. See Lundgren v. Fultz, 354 N.W.2d 25, 28-29 (Minn.1984) (psychiatrist owed duty to third party where patient threatens foreseeable harm to that party and psychiatrist has the ability to control the risk of harm); Cairl v. State, 323 N.W.2d 20, 25 n. 7, 26 (Minn.1982) (treatment facility may owe duty to warn identifiable third parties of violent propensities of a mentally disabled youth whom it released if that youth poses a specific threat to those parties). We also recognized a physician’s duty to third parties in Skillings v. Allen, 143 Minn. 323, 325-26, 173 N.W. 663, 664 (1919). In that case, a minor child was hospitalized with scarlet fever. Id. at 324, 173 N.W. at 663. When the parents asked the child’s physician about the nature of the disease and the danger of infection, the physician negligently informed them that they could safely visit, their .daughter in the hospital and take her home, even though the disease was in its most contagious stage. Id. We held that the doctor owed a duty to the parents, reasoning that “one is responsible for the direct consequences of his negligent acts whenever he is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to that person.” Id. at 325, 173 N.W. at 663-64. We declined to label the duty contractual or noncontractual, noting that under either construct, liability extends to the parents because the physician had an obligation to use due care in a situation where it was likely known that the parents would rely on the advice. See id. at 326, 173 N.W. at 664.

Similarly, we noted in an attorney malpractice case, Togstad v. Vesely, Otto, Miller & Keefe, that an attorney-client relationship existed “under circumstances which made it reasonably foreseeable to [the defendant] that [the plaintiff] would be injured if the advice were negligently given.” 291 N.W.2d 686, 693 (Minn.1980). Our decision in Togstad derived from the professional relationship. The plaintiff in that case consulted with the attorney defendant to discuss the medical treatment of her husband, whom she believed suffered permanent brain damage as a result of a hospital’s negligence. Id. at 689-90. After taking notes and asking questions of the plaintiff, the defendant told her that she did not have a case for medical malpractice. Id. at 690. In reliance on these statements, the plaintiff did not pursue her case further until the statute of limitations for medical malpractice had run. See id. The plaintiff obtained expert testimony that a competent attorney would, at a minimum, obtain medical records and consult with an expert in the field before informing a client that she did not have a case. Id. at 691-92. We held that there was sufficient evidence to support an attorney-client relationship because it was reasonably foreseeable that negligent advice would injure the plaintiff. Id. at 693. We declined to adopt either tort or contract theory in resolving the case because under either legal theory the evidence established that the plaintiff “sought and received legal advice * * * under circumstances which made it reasonably foreseeable to [the attorney] that [the plaintiff] would be injured if the advice were negligently given.” Id.

Only a few other jurisdictions have addressed the question of whether a physician owes a legal duty to the family of a patient who received negligent care in the field of genetics. In a case most analogous to the instant one, the New Jersey Supreme Court held that a physician owes a duty to members of the patient’s immediate family who might be injured by the physician’s breach of duty to the patient. Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834, 839 (1981). The court held that liability could extend to the patient’s family where a doctor’s failure to diagnose a firstborn child with cystic fibrosis led to the birth of a second child with that disorder and it was foreseeable that the parents would rely on the diagnosis. Id. at 839-40; cf. Lininger v. Eisenbaum, 764 P.2d 1202, 1205 (Colo.1988) (holding that a physician’s failure to diagnose the hereditary nature of a child’s blindness that led his parents to conceive a second blind child stated a cause of action).

The Supreme Court of Florida has also held that a duty exists where “the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties.” Pate v. Threlkel, 661 So.2d 278, 282 (Fla.1995). In Pate, the defendant physician diagnosed the plaintiffs mother with me-dullary thyroid carcinoma, a genetically inheritable disease. Id. at 279. When the plaintiff learned that she also carried the disease, she sued, alleging that the defendant should have known of the inheritable nature of the disease and owed a duty to inform her mother that the plaintiff may have carried it as well. Id. The plaintiff presented expert testimony that the prevailing standard of care required physicians to inform patients of the genetically transferable nature of their conditions. Id. at 281. The Florida Supreme Court noted that the standard of care was developed for the benefit of third parties and therefore held that a physician owes a duty to those third parties of whom the physician has knowledge. Id. at 282.

Other courts have drawn upon the prevailing standard of care to define the duties physicians owe in the context of genetic counseling. For example, the California Court of Appeals found no duty to parents to disclose the possibility of having a child with Tay-Sachs disease when the physicians did not have any reason to suspect that the parents were in a high-risk group for the disease. Munro v. Regents of Univ. of Cal., 215 Cal.App.3d 977, 263 Cal.Rptr. 878, 882 (1989). That court recognized that it was impossible to test all patients and relied on expert testimony that the prevailing standard of care required testing only when parents, had specific ethnic backgrounds. Id. Similarly, the New Jersey Court of Appeals relied upon “the presumed medical knowledge at the time [of treatment]” to find a duty to warn the patient’s immediate' family of a patient’s genetically transferable condition. Safer v. Estate of Pack, 291 N.J.Super. 619, 677 A.2d 1188, 1192 (App.Div.1996).

Cases such as Safer; Munro, and Pate recognize that the' field of genetic counseling is rapidly evolving as new methods of testing become more practical and reliable, and the legal duty of physicians will be driven, at least in part, by the standard of care in the medical profession. As this occurs, it is unlikely that the medical community will adopt a standard of care that is either unduly burdensome or unbeneficial to patients;

Our decision today is informed by the practical reality of the field of genetic testing and counseling; genetic testing and diagnosis does not affect only the patient. Both the patient and her family can benefit from accurate testing and diagnosis. And conversely, both the patient and her family can be harmed by negligent testing and diagnosis. Molloy’s experts indicate that a physician would have a duty to inform the parents of a child diagnosed with Fragile X disorder. The appellants admit that their practice is to inform parents in such a case. The standard of care thus acknowledges that families rely on physicians to communicate a diagnosis of the genetic disorder to the patient’s family. It is foreseeable that a negligent diagnosis of Fragile X will cause harm not only to the patient, but to the family of the patient as well. This is particularly true regarding parents who have consulted the physicians concerning the patient’s condition and have been advised of the need for genetic testing.

We therefore hold that a physician’s duty regarding genetic testing and diagnosis extends beyond the patient to biological parents who foreseeably may be harmed by a breach of that duty. In this case, the patient suffered from a serious disorder that had a high probability of being genetically transmitted and for which a reliable and áccepted test was widely available. The appellants should have foreseen that parents of childbearing years might conceive another child in the absence of knowledge of the genetic disorder-. . The appellants owed a duty of care regarding genetic testing and diagnosis, and the resulting medical advice, not only to S.F. but also to her parents. In recognizing this duty, we apply the principles of negligence law set forth in Skillings and Togstad and conclude that the duty arises where it is reasonably foreseeable that the parents would be injured if the advice is negligently given. “ ‘[T]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.’ ” Connolly v. Ni- collet Hotel, 254 Minn. 373, 381, 95 N.W.2d 657, 664 (1959) (quoting Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928)).

Under our standard of review for summary judgment, there is sufficient evidence in the record to indicate that each of the appellants was on notice that S.F. displayed symptoms of Fragile X but that the testing was never carried out. Drs. Meier and Backus met face-to-face with Molloy and were aware of her specific need for accurate genetic information. Dr. Green did not meet face-to-face with Molloy but that does not relieve her of her duty of reasonable care to the patient and the patient’s biological parents to provide accurate genetic testing results. We find sufficient evidence in the record to submit the negligence of each physician to a jury for a determination on whether one or more of the physicians breached the standard of care.

Appellants suggest that recognizing a duty to Molloy would extend a physician’s duty to an unreasonable extent, requiring the physician to seek out and inform distant relatives. The court of appeals held that the “physician must notify a biological parent” to discharge his or her duty. Molloy, 660 N.W.2d at 453. Molloy concedes that the appellants could have discharged their duty by informing an appropriate contact person, who in this case would be Robert Flomer or Randine Flomer, the custodial parents, or Molloy, the noncustodial biological parent. In light of this concession, the facts of this case, and the limitation of the certified question to whether a duty extends to a minor patient’s parents, we need not, and do not, address whether the duty recognized here extends beyond biological parents who foreseeably will rely on genetic testing and diagnosis and therefore foreseeably may be injured by negligence in discharging the duty of care.

II.

We next consider whether Molloy’s action is barred by the statute of limitations for medical malpractice actions. Minnesota Statutes § 541.076(b) (2002), states that medical malpractice actions “must be commenced within four years from the date the cause of action accrued.” The action in this case was commenced in August 2001, more than four years after S.F.’s last treatment with each of the appellants, but within four years of the date of M.M.’s conception and birth. The question is whether the cause of action accrued on the date of last treatment or at the time of conception of M.M. The court of appeals concluded that the cause of action did not accrue until the time of conception, which was within the four-year statute of limitations. Molloy, 660 N.W.2d at 456.

The appellants urge us to reverse the court of appeals and hold that under the “termination of treatment rule” Molloy’s cause of action accrued when S.F. ended treatment with the appellants. In the case of a misdiagnosis, the appellants argue that treatment terminates, and the action accrues, on the date of the misdiagnosis. See Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn.1993). Molloy argues that an action cannot be time barred which has not accrued, which she claims occurred at M.M.’s conception, the point at which her claim against the appellants could withstand a motion to dismiss for failure to state a claim upon which relief may be granted.

An action does not “accrue” until it may be brought without dismissal for failure to state a claim upon which relief may be granted. Dalton v. Dow Chemical Co., 280 Minn. 147, 152-53, 158 N.W.2d 580, 584 (1968); see also Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (applying Dalton to legal malpractice claim). According to Webster’s dictionary, “accrue” is defined as “to come into existence as an enforceable claim: vest as a right.” Webster’s New International Dictionary 13 (3d ed. 1961). In the context of a malpractice action, the action accrues when the plaintiff establishes each of the four elements of negligence. See Plutshack, 316 N.W.2d at 5. Therefore, “alleged negligence coupled with the alleged resulting damage is the gravamen in deciding the date when the cause of action accrues.” Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 429 (Minn.1988) (applying Dalton to the medical malpractice context).

In the typical negligence case, there is little doubt about when the action accrues because the breach of duty by the defendant and the plaintiffs resulting injury occur simultaneously. See Dalton, 280 Minn. at 151, 158 N.W.2d at 583. In a more straightforward medical negligence case, for example, a discrete surgical error occurs and causes immediate damages— the negligence and the resulting harm occur at a discrete, identifiable point in time. In the context of a long-running relationship between patient and physician, however, where the negligence is a failure to properly diagnose and treat a condition, it may be difficult to determine when in the course of treatment the physician breached a duty. See Offerdahl, 426 N.W.2d at 429. To ameliorate this problem, we fashioned the “termination of treatment rule,” under which a cause of action for medical malpractice will not accrue until the plaintiff ceases treatment with the defendant physician. Grondahl v. Bulluck, 318 N.W.2d 240, 243 (Minn.1982); Schmitt v. Esser, 178 Minn. 82, 86, 226 N.W. 196, 197 (1929). This rule is intended to extend the statute of limitations by assuming that the negligent conduct of the physician occurred on the last day of treatment unless the plaintiffs injury was caused by a discrete, identifiable act. See Offerdahl, 426 N.W.2d at 429. In other words, the termination of treatment rule establishes the date for the breach of duty but it does not answer when the date of injury occurs.

In this case, there is no dispute that the alleged breach of duty occurred on the last date of treatment for each physician. However, the cause of action will not accrue until the plaintiff has suffered some injury, so the question is: What is the injury and when did it occur? See Dalton v. Dow Chem. Co., 280 Minn. 147, 153, 158 N.W.2d 580, 584 (1968) (stating that the cause of action accrues and the applicable statute of limitations begins to run as soon as the plaintiff has sustained some damage). Molloy’s claim is that if Fragile X had been diagnosed in S.F., Molloy would have learned that any future children had a nearly 50 percent likelihood of inheriting the condition, she would have had a tubal ligation, and M.M. would not have been conceived. She claims the damages stem from M.M.’s conception. The appellants argue that based on our decision in Fabio v. Bellomo, “some damage occurs as a matter of law when the physician fails to make a correct diagnosis and recommend the appropriate treatment.” Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn.1993) (holding that an action for negligent failure to diagnose cancer accrued at the time of misdiagnosis). They argue that this court should “infer” that damage occurred at the time S.F.’s condition was misdiagnosed and her family was not informed of the true nature of her condition.

The court of appeals rejected appellants’ argument and distinguished the facts in the instant case from those in Fabio. Molloy, 660 N.W.2d at 455-56. According to the court, “Fabio dealt with [a] condition, cancer, * * * that [grew] progressively worse without treatment. The negligence alleged here is unique in that the failure to order fragile X testing did not make S.F.’s condition progressively worse.” Id. at 455 (internal citations omitted). We agree with the conclusion of the court of appeals on this point. The misdiagnosis in Fabio caused the plaintiff immediate injury in the form of a continually growing cancer, which became more dangerous to the plaintiff each day it was left untreated. The action accrued at the time of misdiagnosis because some damage occurred immediately. In the case of failure to diagnose Fragile X, however, the error does not directly damage the patient and but for the fact that she conceived another child, Molloy would have suffered no damage.

We reaffirm the long-standing principle that malpractice actions based on failures to diagnose generally accrue at the time of the misdiagnosis, because some damage generally occurs at that time. However, where the claim is that if the diagnosis of Fragile X had been properly made a tubal ligation would have been performed and conception avoided, we conclude that damage does not occur until the point of conception, and the cause of action then accrues. See Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175 (Minn.1977) (stating that a plaintiffs injury in a wrongful conception action originates at the point of conception). M.M. was conceived in approximately September 1997 and the suit was initiated in August 2001, within the four-year statute of limitations and, therefore, the action is not time-barred.

III.

The final certified question concerns whether MinmStat. § 145.424 prohibits Molloy’s cause of action. The statute provides in pertinent part:

Subdivision 1. Wrongful life action prohibited. No person shall maintain a cause of action or receive an award of damages on behalf of that person based on the claim that but for the negligent conduct of another, the person would have been aborted.
Subd. 2. Wrongful birth action prohibited. No person shall maintain a cause of action or receive an award of damages on the claim that but for the negligent conduct of another, a child would have been aborted.
Subd. 3. Failure or refusal to prevent a live birth. Nothing in this section shall be construed to preclude a cause of action * * * [claiming that] but for the negligent conduct of another, tests or treatment would have been provided * * * which would have made possible the prevention, cure, or amelioration of any disease, defect, deficiency, or handicap.

The appellants argue that Molloy’s action is essentially a “wrongful birth” action, and therefore prohibited by section 145.424, subdivision 2 (2002). Molloy contends that the statute prohibits only claims that but for the negligent conduct, an abortion would have been sought. Because Molloy claims that she would have sought a tubal ligation, not an abortion, if the appellants had fulfilled their duty to her, she argues that her claim is not prohibited. The district court held that Mol-loy’s wrongful-conception cause was not prohibited by the statute and the court of appeals agreed, concluding that the plain language of Minn.Stat. § 145.424 did not bar the action.

When we interpret statutes, we first determine whether the language of the statute, on its face, is clear or ambiguous. Gomon v. Northland, Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002). A statute is ambiguous if it is susceptible to more than one reasonable interpretation. Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998). “Words and phrases are construed * * * according to their common and approved usage.” Minn.Stat. § 645.08(1) (2002). However, “[i]f the words of the statute are ‘clear and free from all ambiguity,’ further construction is neither necessary nor permitted.” Owens v. Water Gremlin Co., 605 N.W.2d 733, 736 (Minn.2000).

The plain language of section 145.424 does not support the appellants’ contention that Molloy’s claim is barred by statute. The statute bars claims that but for the negligence, the pregnancy would have been aborted. Molloy makes no claim that she would have aborted M.M. if she had more accurate information about S.F.’s genetic condition. Rather, Molloy’s complaint alleges that “[h]ad [she and her husband] known that [S.F.] had Fragile X, they would not have conceived [M.M.].” This states an action not for wrongful life or birth, but rather for wrongful conception — an action that has been recognized in this state for over a quarter century. Sherlock, 260 N.W.2d at 174 (holding that parents may sue physician for damages proximately caused by a negligently performed sterilization procedure). Because Molloy’s action is properly characterized as one for wrongful conception rather than wrongful birth, it is not barred by Minn. Stat. § 145.424. We answer this certified question in the negative, and affirm the court of appeals.

Affirmed.

PAGE, J., concurred in part, dissented in part, and filed opinion.

GILBERT, J., took no part in the consideration or decision of this case.

PAGE, Justice

(concurring in part, dissenting in part).

I concur in the court’s opinion with respect to parts I and III. However, I disagree with the court’s attempt to distinguish our relatively recent holding in Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993), to reach a different result based on the facts of this case. In Fa-bio, in the face of Justice Gardebring’s dissent, which I joined along with Justice Wahl, the court reiterated the longstanding rule that, in general, a cause of action for medical malpractice accrues when a physician ceases to treat a patient for a particular condition. Id. at 762; see also Grondahl v. Bulluck, 318 N.W.2d 240, 243 (Minn.1982). In footnote 2 of her dissent, Justice Gardebring noted that, in addition to the continuing course of treatment rule, there are three other exceptions to the rule that the statute of limitations begins to run when treatment ceases in medical malpractice cases. Those exceptions are:

[T]he discovery rule, which tolls the limitations period until a patient discovered or should have discovered the injury; the fraudulent concealment exception, which tolls the statute until the condition was discovered or should have been discovered when a physician attempts to conceal his or her negligence, and the foreign object exception, which tolls the statute when a foreign object is found inside the body of a patient.

Fabio, 504 N.W.2d at 764. And, as Justice Gardebring pointed out, of these exceptions, “Minnesota recognizes only fraudulent concealment as a means of tolling the two-year statute of limitations. Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931); Couillard v. Charles T. Miller Hospital, Inc., 253 Minn. 418, 92 N.W.2d 96 (1958).”

Now, in its attempt to distinguish Fabio, the court, without acknowledging what it is doing, adopts the discovery rule for medical malpractice cases. While I disagreed with our 1993 holding in Fabio, stare deci-sis dictates that we follow it now. Zettler v. Ventura, 649 N.W.2d 846, 852 (Minn. 2002) (Anderson, R., J., dissenting) (“While the doctrine of stare decisis is not inflexible, it is not to be abandoned on a whim * ⅜ Therefore, I respectfully dissent.

      . The court of appeals also held that the appellants did not owe a duty to "convey medical information regarding S.F. to Glenn Molloy.” Molloy v. Meier, 660 N.W.2d 444, 453 (Minn.App.2003). Glenn Molloy did not petition this court for cross-review of the court of appeals’ decision on this point.

      . According to the expert witnesses, Fragile X syndrome, one of the leading causes of mental retardation, is often hereditary and causes developmental delays and symptoms ranging from mild learning disabilities to severe mental retardation. Fragile X is a mutation in the Fragile X Mental Retardation 1 gene in the DNA that makes up the X chromosome.

      . Dr. Meier testified in a deposition that she intended to order both chromosome and Fragile X testing and could not determine "where the system breakdown occurred” that resulted in no testing for Fragile X.

      . A fourth question, whether "[i]n the type of action described [in (a) above], are the parents’ damages, including the cost of care for the subsequent disabled child, recoverable only through the age of 18, the child's lifetime, or the parents' lifetime,” was voluntarily withdrawn by the appellants following a jurisdictional order from the court of appeals.

      . The appellants claim that recent court of appeals decisions limit the application of Skillings. They rely on McElwain v. Van Beek, in which the court held that a physician did not owe a duty to the sister of an emergency room patient who fainted from watching the physician perform a procedure on her brother. 447 N.W.2d 442, 446 (Minn.App.1989). Although the court based its holding on the lack of a doctor-patient relationship, it may have reached the same result under a foreseeability analysis.

      . Cystic fibrosis is a genetically-transmitted disease that is carried by some parents as a recessive gene, which must be borne by both parents in order for the disease to develop in the child. Schroeder, 432 A.2d at 836.

      . See Jeri E. Reutenauer, Note, Medical Malpractice Liability in the Era of Genetic Susceptibility Testing, 19 Quinnipiac L. Rev. 539, 551 (2000).

      . Jeffrey W. Burnett, Comment, A Physician's Duty to Warn a Patient's Relatives of a Patient’s Genetically Inheritable Disease, 36 Hous. L. Rev. 559, 578-79 (1999).

        . Id. (citing Theodor Friedmann, Genetic Therapy, in Human Genome Project: Ethics 203, 207 (1992)).

      . The dissent asserts that by our holding we are adopting the discovery rule for medical malpractice cases. We do not hold that the limitations period is tolled. Rather, under the unique facts of this case the limitations period did not accrue and begin to run until damage occurred at the time of M.M.'s conception.

      . Justice Simonett articulated the distinction between the two types of actions in his concurrence in Hickman v. Group Health Plan, Inc.:

      [T]he interests sought to be compensated are different. In the one case, there is the right not to conceive; in the other, there is the right not to give birth. In the one, it is the right not to have an unplanned child, while in the other it is the right not to have an unwanted child. In the one case, there is no hypothetical exercise of choice of treatment, while in the other case there is.
      396 N.W.2d 10, 17 (Minn.1986) (Simonett, J., concurring specially). Justice Simonett con-eluded that the legislature enacted subdivision 3 to preserve Sherlock actions for wrongful conception, while barring "wrongful birth" actions. Id. at 18. Professor Dobbs also noted this distinction in his treatise on torts, in which he cited Minnesota's statute as an attempt to abolish claims that but for a physician's negligence, a child would have been aborted, while preserving the cause of action for wrongful conception. See Dan B. Dobbs, The Law of Torts § 291, at 793 (2000). We adopt the conclusion of Justice Simonett on this point.


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Justice.

license: Public Domain

text:
    In re the Marriage of Deborah K. MINGEN, petitioner, Appellant, v. Thomas M. MINGEN, Respondent.
    No. C6-03-152.
    Supreme Court of Minnesota.
    May 27, 2004.

      John Thomas Burns, Jr., Burnsville, MN, for Appellant.
    Timothy J. McLarnan, McLarnan, Han-naher & Skatvold, Moorhead, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

In this case, we consider whether the expiration of the 60-day period to appeal from entry of judgment under Minn. R. Civ.App. P. 104.01, subd. 1, may be revived and extended by a subsequent post-decision motion under Minn. R. Civ.App. P. 104.01, subd. 2, to amend the order that directed entry of judgment. The court of appeals dismissed the appeal as untimely because appellant’s post-decision motion, filed after expiration of the time for appeal from the judgment, was untimely and therefore did not extend the appeal period. We affirm.

The marriage of Deborah and Thomas Mingen was dissolved in 1995 and, by stipulation, Thomas agreed to pay maintenance to Deborah. Seven years later, Thomas, claiming involuntary job loss, brought a motion to modify spousal maintenance payments and Deborah, by cross-motion, requested that Thomas’s motion be denied and that she be awarded attorney fees. On August 16, 2002, the district court order granting Thomas’s motion was filed and judgment was entered. Neither party served the other with written notice of filing of the order.

On October 21, 2002, Deborah filed a motion to amend the August 16 order, claiming that the district court had failed to consider her earlier cross-motion requesting that Thomas’s motion be denied and that she be awarded attorney fees. The district court’s order denying Deborah’s motion to amend was filed on November 20, 2002, and on November 25, 2002, Deborah was served with written notice of filing of the November 20 order. On January 22, 2003, Deborah filed an appeal from the August 16 judgment. After requesting memoranda from the parties on the issue of whether Deborah’s appeal was timely, the court of appeals dismissed the appeal as untimely by order of March 25, 2003, and a published opinion followed on June 17, 2003. Mingen v. Mingen, 662 N.W.2d 926 (Minn.App.2003). We granted Deborah’s petition for review.

I.

Rule 104.01, subd. 1 provides that unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days of its entry and from an appealable order within 60 days after service by a party of written notice of its filing. Rule 104.01, subd. 2 provides that if a “proper and timely” post-decision motion is filed, the time to appeal from judgment or an appealable order that is the subject of the motion is tolled and does not begin to run until service of notice of filing of the order disposing of the post-decision motion. The purpose of Rule 104.01, subd. 2, is to allow a district court to rule on post-decision motions before an appeal is commenced. See Minn. R. Civ.App. P. 104.01, Advisory Committee Comment—1998 Amendments; see also Huntsman v. Huntsman, 633 N.W.2d 852, 855 (Minn. 2001). A motion to amend findings of fact or to amend a judgment under Minn. R. Civ. P. 52.02 is a post-decision motion listed in Rule 104.01, subd. 2, that, if “proper and timely,” will effectively extend the time to appeal the judgment. Rule 52.02 specifies that a motion to amend is “timely” if it is brought within the time allowed for a motion for a new trial, that is, 30 days from service of notice of filing of the decision or order. See Minn. R. Civ. P. 59.03. Rule 104.02 provides, however, that “[n]o order made prior to the entry of judgment shall be appealable after the expiration of time to appeal from the judgment.”

From these provisions, the arguments of the parties are apparent. Deborah argues that because she never received service of notice of filing of the August 16 order, the 30-day time period under Minn. R. Civ. P. 52.02 to move for amended findings of fact did not begin to run, and her October 21 motion to amend the August 16 order was therefore a proper and timely post-decision motion under Rule 104.01, subd. 2. She contends that the effect of her motion was that under Rule 104.02, the 60-day period to appeal from entry of judgment did not begin until November 25, the day she was served with notice of filing of the court’s November 22 order denying her post-decision motion to amend. Therefore, according to Deborah, her January 22 appeal of the August 16 judgment was timely-

Thomas argues that Deborah’s October 21 motion to amend the findings of fact in the August 16 order was not timely despite the fact that she had not been served with notice of filing of the August 16 order. Thomas contends that the court of appeals was correct in concluding that a motion cannot be timely if it is made after the time to appeal the judgment has already expired, and a post-decision motion cannot revive an expired appeal period.

We interpret our rules of civil procedure de novo. Madson v. Minnesota Min. Mfg. Co., 612 N.W.2d 168, 170 (Minn.2000). We do not read them in isolation but read them in light of one another, interpreting them according to their purpose. See House v. Hanson, 245 Minn. 466, 473, 72 N.W.2d 874, 878 (1955) (“The words of a court rule, like those of a statute, must be taken and construed in the sense in which they were understood and intended at the time the rule was promulgated. Any other principle of construction would undermine confidence in the court’s rule-making power.”).

We conclude that Deborah’s post-decision motion of October 21, 2002, filed after the time to appeal from the judgment had expired, was not timely. In Marzitelli v. City of Little Canada, we explained that “[i]f the time for appeal from an order expires without appeal having been taken, then the order becomes final and the district court’s jurisdiction to amend the order is terminated.” 582 N.W.2d 904, 906 (Minn.1998). Under Rule 104.02, the August 16 order was no longer appealable once the time to appeal the judgment expired. Therefore, the district court no longer had jurisdiction to amend the August 16 order, and the motion to amend the order could not have been timely if the court had- no jurisdiction to consider it.

It has long been the rule that the period to appeal from an appealable order does not start until service of notice of filing of the order. Minn. R. Civ.App. P. 104.01, subd. 1. Nevertheless, based on Rule 104.02, it has also been the rule that “all prejudgment orders cease to be ap-pealable upon expiration of the time to appeal from the judgment.” 3 Eric J. Magnuson and David F. Herr, Minnesota Practice — Appellate Rules Annotated § 104.11 (4th ed. 2003) (citing and discussing Harcum v. Benson, 135 Minn. 23, 160 N.W. 80 (1916)). In other words, as we stated in Marzitelli, orders become final with the passing of the judgment appeal period. There is little sense in treating a motion to amend an order as timely when the motion is filed after the order can no longer be appealed. 582 N.W.2d at 906. For that reason, our longstanding principle is that a motion for a new trial cannot be filed after the time to appeal the resulting judgment has expired. See Barrett v. Smith, 183 Minn. 431, 436, 237 N.W. 15, 17 (1931) (“when a judgment has'beeome final by the expiration of the time for appeal, it is no longer open to attack by motion for new trial”); Smith v. Minneapolis St. Ry. Co., 134 Minn. 292, 295, 159 N.W. 623, 623 (1916) (“We are of the opinion that when a judgment has become final by the expiration of the time within which an appeal may be taken it should not be subject to attack upon a motion for a new trial for error or insufficiency of evidence.”); Conk-lin v. Hinds, 16 Minn. 457, 467 (Gil. 411) (1871) (stating that a judge’s ruling on a motion for a new trial must be reviewed for abuse of discretion and that “[it] would certainly be such an abuse to entertain a motion for a new trial after the time for appeal from the judgment had expired”).

While Rule 104.01, subd. 2, was amended in 1998 to provide for the tolling of the appeal period if the motion is proper and timely filed, one cannot toll an appeal period that has already expired. Rule 104.01, subd. 2 was not intended to revive an already-expired appeal period.

It is axiomatic that one of the purposes of our rules of civil appellate procedure is to provide finality and closure to litigation. Once the time to appeal from entry of judgment has expired, Rule 104.02 expressly limits the right of a party to appeal from an otherwise appealable prejudgment order, regardless of whether the party received notice of filing of the ap-pealable order. The language of Rule 104.02 is very clear: “No order made prior to the entry of judgment shall be appeal-able after the expiration of time to appeal from the judgment.” While we have allowed the appeal period to be extended by a proper and timely post-decision motion made prior to the expiration of the time to appeal from entry of judgment, Huntsman v. Huntsman, 633 N.W.2d 852, 856 (Minn.2001), we have not allowed an extension of time to appeal when such a motion is made after expiration of the time to appeal from entry of judgment. Without such a limitation, the appeal period from judgments could be extended forever.

While Rule 104.02 does not expressly address the right of a party to bring a post-trial motion after the expiration of the time to appeal from judgment, our interpretation today is supported by both the underlying rationale of Rule 104.02, which is clearly intended to bring finality and closure to the appellate process, and also by our case law. Thus, we hold that a post-decision motion to amend a pre-judgment order is not timely if filed after expiration of the 60-day period to appeal from the judgment, and because such a motion is not timely, it does not toll the period for appeal from the order or judgment.

Affirmed.

      . The order denying the motion for amended findings was not appealable. Tompkins v. Sandeen, 243 Minn. 256, 258, 67 N.W.2d 405, 407 (1954).

      . While notice of filing is required to start the time period to appeal from an appealable order, notice is not required to start the time period to appeal from a judgment. Whether or not the parties receive notice of entry of judgment, the time period to appeal from a judgment begins upon entry of the judgment. See Tombs v. Ashworth, 255 Minn. 55, 62, 95 N.W.2d 423, 428 (1959) ("the law is clear that the time for appealing from a judgment commences to run upon the entry thereof and that failure of the clerk to comply with Rule 77.04 with respect to service of notice does not affect the time for appealing”).

      . While Thomas argues that Deborah’s October 21 motion is a motion for reconsideration that is prohibited, except by express permission of the court under Minn. Gen. R. Prac. 115.11, we have held that to determine whether the Rule 104.01, subd. 2, motion is authorized, and therefore proper, we look to the face of the document, not the merits of the motion. Madson v. Minnesota Min. Mfg. Co., 612 N.W.2d 168, 171-72 (Minn.2000). Since Deborah’s motion on its face states that it seeks amendment of findings of fact in the August 16 order, it appears to be facially "proper” under Madson. We decline, however, to decide this matter on the basis of whether the October 21 motion is a proper Rule 104.01, subd. 2, motion, but assume, for purposes of this appeal, that it is.

      . We are mindful of the fact that this court has observed in dicta that the failure to serve notice of filing prevents the time to appeal an order from beginning to run. Rieman v. Joubert, 376 N.W.2d 681, 684 (Minn.1985) (“When, however, no notice of filing is served, the 15-day time period never starts and a party apparently has an indefinite period of time in which to make post-trial motions”). The Rieman case, however, addressed the specific issue of whether a defendant had waived service of notice of filing for purposes of making a post-decision motion, and this court did not address the question of whether a post-decision motion could be made following the expiration of the appeal period for the judgment.

      . We note that Deborah could have chosen to appeal the order granting modification of spousal maintenance under Rule 103.03(h). On October 21, when Deborah filed her motion for amended findings, however, her right to appeal the court's order was barred by Rule 104.02 because more than 60 days had passed since the entry of judgment.


author: MEYER, Justice.

text:
    James S. HARRIS, III, Respondent, v. COUNTY OF HENNEPIN, Relator.
    No. A03-1108.
    Supreme Court of Minnesota.
    May 27, 2004.

      Amy Klobuchar, Hennepin County Attorney, Robert A. Burck, Assistant County Attorney, Minneapolis, MN, for Relator.
    Thomas R. Wilhelmy, Laurie J. Miller, Joseph G. Springer, Fredrickson & Byron, P.A., Minneapolis, MN, for Respondent.
    Mike Hatch, Attorney General, James W. Neher, Asst. Attorney General, St. Paul, MN, for amicus Commissioner of Revenue.
   OPINION

MEYER, Justice.

This case presents the question of whether property tax relief under Minnesota’s equalization relief statute should be calculated based on a property’s actual market value or its limited market value. The Minnesota Tax Court concluded that equalization relief is based on a property’s limited market value. We reverse.

The legislature has provided various mechanisms to alleviate the property tax burdens on certain classes of property. One form of relief is designed to alleviate the impact of unequal assessment among similarly situated, comparable properties, otherwise known as equalization relief. Under Minn.Stat. § 278.05, subd. 4 (2002), even where a property has not been valued in excess of its actual market value, the property owner can obtain relief if the property is valued unequally in comparison with other property in the taxing district.

Another kind of property tax relief is designed to alleviate the impact of rapidly increasing market values. Under Minn. Stat. § 273.11, subd. la (2000), known as the limited market value statute, a cap is placed on the rate at which a taxpayer’s property tax assessment can increase from one year to the next.

James S. Harris, III, taxpayer-respondent, owns a residence in the town of Minnetrista with an estimated market value in 2001 of $4,788,000. The parties agree that Harris is entitled to equalization relief under Minn.Stat. § 278.05, subd. 4. The parties also agree that Harris is entitled to limited market value relief under Minn.Stat. § 273.11, subd. la.

The issue presented requires this court to determine in what order the two types of property tax relief are to be applied. Harris claims that he should be allowed to take his equalization reduction from the limited market value of his property in the amount of $4,479,900. This interpretation of the law would yield an assessed value of $4,229,100. Hennepin County (the county) and the Department of Revenue disagree, arguing that Harris’s equalization reduction should first be taken from the actual market value of his property and that the limited market value relief should then be applied. This interpretation of the law would yield an assessed value of $4,529,400. The county contends that the limited market value would cap the assessed value.

The dispute between Harris and the county was submitted to the tax court on stipulated facts. The court granted summary judgment for Harris, concluding that applying equalization to the limited market value of property was the only way to give effect to both the equalization relief statute' and the limited market value statute. The county appealed to this court, alleging that the tax court erred by granting Harris an equalization reduction from limited market value rather than actual market value.

This is a case of first impression. We have not previously determined the proper interplay between the limited market value and equalization relief statutes. We review this summary judgment ruling on stipulated facts to determine 'whether the tax court erred in its application of the law. Brookfield Trade Center, Inc. v. County of Ramsey, 609 N.W.2d 868, 873-74 (Minn.2000). Statutory construction is an issue of law that we review de novo. Astleford Equip. Co. v. Navistar Int’l Transp. Corp., 632 N.W.2d 182, 188 (2001). The object of statutory interpretation “is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2002). Courts must give effect to the plain meaning of statutory text when it is clear and unambiguous. Green Giant Co. v. Comm’r of Revenue, 534 N.W.2d 710, 712 (Minn.1995). “A statute is ambiguous if it is reasonably susceptible to more than one interpretation.” Current Tech. Concepts, Inc. v. Irie Enter., Inc., 530 N.W.2d 539, 543 (Minn.1995).

The equalization relief - statute, Minn. Stat. § 278.05, subd. 4, provides that in the trial of an equalization case, “sales ratio studies” published by the Department of Revenue “shall be admissible in evidence as a public record.” “Sales ratio studies” are then referenced in Minn.Stat. § 127A.48 (2002 & Supp.2003), wherein the methodology for conducting the studies by the Department of Revenue is set forth in some detail. Reference to “sales ratio studies” is also found in Minn.Stat. § 273.11, subd. la, as follows:

For purposes of the assessment/sales ratio study conducted under section 127A.48, and the computation of state aids paid under chapters 122A, 123A, 123B, 124D, 125A, 126C, 127A, and 477A, market values and net tax capacities determined under this subdivision and subdivision 16, shall be used.

Harris argues that the plain language of section 273.11, subdivision la, states that limited market values are to be used in an equalization proceeding. Harris reads the phrase “and the computation of state aids” as a conjunction, indicating the legislature’s intent to employ limited market values in both assessment/sales ratio studies and state aid calculations. We believe that an equally plausible interpretation of the statute is that the legislature intended limited market values to be used “[f]or purposes of the assessment/sales ratio study” as it relates to the computation of state aids. See id. This interpretation acknowledges that there is more than one purpose for the study and that limited market values should only be used for one of those purposes, the calculation of state aids. Furthermore, the maxim expressio unius est exclusio alterius, the expression of one thing indicates the exclusion of another, supports the proposition that the absence of section 278.05 equalization proceedings in the list of enumerated chapters in section 273.11 indicates that the legislature did not intend for limited market values calculated under section 273.11 to apply to equalization relief. Minnesota Statutes § 273.11, subdivision la, does not clearly and unambiguously lead us to conclude that limited market values are the basis for equalization proceedings.

We look to other sections of the law and our canons of statutory construction to determine the intent of the legislature. We may examine, among other considerations, the “occasion and necessity for the law” and “the circumstances under which it was enacted.” Minn.Stat. § 645.16 (2002). We may also look to the state of the law before a statute was enacted. Id. In doing so, we will attempt to read statutes in a way that gives effect to all their provisions. Id. Statutes should be read as a whole with other statutes that address the same subject. See State v. Chambers, 589 N.W.2d 466, 480 (Minn.1999).

It is helpful to examine equalization relief as it existed before the passage of Minn.Stat. § 278.05 in order to understand the occasion and necessity for the passage of the statute. Property tax assessors in Minnesota have historically “assessed] property systematically and uniformly at a percentage of its true value.” Renneke v. County of Brown, 255 Minn. 244, 248, 97 N.W.2d 377, 380 (1959). Therefore, we have recognized that “discrimination in the imposition of the tax burden” violates the uniformity clause of the Minnesota Constitution and the Equal Protection Clause of the federal constitution. Hamm v. State, 255 Minn. 64, 70, 95 N.W.2d 649, 654-55 (1959). To remedy this unequal assessment, the courts of this state allowed taxpayers to receive relief if they could demonstrate that their property was assessed at a higher rate than other similarly situated properties. See Minn.Stat. § 271.01 (2002); Renneke, 255 Minn. at 248, 97 N.W.2d at 380. Sustaining such a claim necessarily requires that a taxpayer compare the assessed value of his property with that of property in the same class. United Nat’l Corp. v. County of Hennepin, 299 N.W.2d, 73, 76 (Minn.1980); Renneke, 255 Minn. at 248, 97 N.W.2d at 380.

In 1980, the legislature enacted Minn. Stat. § 278.05, subd. 4, to simplify the procedure for taxpayers to make out claims for equalization relief. See Act of Apr. 3,1980, ch. 443, § 3, 1980 Minn. Laws 270, 272. Section 278.05, subdivision 4, states that the Department of Revenue’s assessment/sales ratio study shall be “pri-ma facie evidence of the level of assessment” in a given taxing district. The legislature incorporated the assessment/sales ratio study conducted under Minn.Stat. § 127A.48 (2002 & Supp.2003), which was originally used to determine levels of state aids for local school districts, to provide a yardstick by which to measure claims for equalization relief. See Minn.Stat. § 278.05, subd. 4; see also Minn. Dep’t of Revenue, 2003 Sales Ratio Study Criteria 2. Accordingly, Minn.Stat. § 278.05, subd. 4, announced the methodology for making out claims for equalization relief, but did not alter the essential nature of the taxpayer’s remedy for unequal assessment.

In light of the purposes for statutory equalization and its constitutional underpinnings, we conclude that the legislature intended for equalization relief to be based on actual market value rather than limited market value. Since Hamm and Renneke, Minnesota courts have recognized a constitutional right for taxpayers to be assessed at a percentage of fair market value that is similar to other taxpayers in the same taxing district. See Ploetz v. County of Hennepin, 301 Minn. 410, 413-14, 223 N.W.2d 761, 763-64 (1974); Dutton Realty, Inc. v. State, 270 Minn. 1, 15, 132 N.W.2d 394, 404 (1964). The remedy necessarily required the aggrieved taxpayer to compute the ratio of the assessed value of his or her property to its actual value and compare similar ratios of other properties in his or her taxing district. See United Nat'l, 299 N.W.2d at 76. In enacting Minn.Stat. § 278.05, subd. 4, the legislature allowed the admission of sales ratio studies as evidence of levels of assessment, thereby establishing a uniform method for obtaining equalization relief. Nothing in the text of MinmStat. § 278.05, subd. 4, purports to alter the purpose of equalization relief, to ensure that property is assessed at a uniform percentage of fair market value.

Furthermore, applying equalization relief to the fair market value of property is the only way to give effect to both Minn. Stat. § 278.05, subd. 4, and Minn.Stat. § 273.11, subd. la. Direct equalization is intended to guarantee that localities assess property at a uniform percentage of its true value. See Renneke, 255 Minn. at 248, 97 N.W.2d at 380. However, two properties with identical market values may have appreciated at different rates due to the age of the property or other market conditions. As a result, these two equally-valuable properties would have different limited market values. Therefore, taking equalization reductions from limited market value, which may vary for two identically-valued properties, would not serve the purpose of equalization, which is to bring assessed property values within a uniform percentage of actual market value. Rather, such a rule would provide a windfall for taxpayers who qualify for both forms of relief by creating a situation in which taxpayers who suffer from unequal assessment would actually pay less in taxes than if their property had been assessed fairly in the first instance.

The purpose of Minn.Stat. § 273.11, to cap annual increases in assessed property value, is better served by first applying equalization relief to fair market value. If a taxpayer receives an equalization reduction based on actual market value under Minn.Stat. § 278.05, subd. 4, and that equalized value falls below the property’s limited market value, there is no need to adjust the equalized value further. The equalization relief alone will bring the taxable value under the cap mandated by Minn.Stat. § 273.11, subd. la. If, however, the equalized value of property exceeds limited market value, Minn.Stat. § 273.11, subd. la, would hold the assessed value to the limited market value.

We therefore hold that, when a taxpayer qualifies for both equalization relief under Minn.Stat. § 278.05, subd. 4, and limited market value relief under Minn.Stat. § 273.11, subd. la, the taxpayer’s equalization reduction must first be applied to the property’s actual market value before its limited market value is determined.

Reversed.

PAGE, J., took no part in the consideration or decision of this case.

      . The practice of assessing some properties in a taxing district at higher percentages of actual market value relative to other properties in that taxing district is referred to as "unequal assessment.” Weyerhaeuser Co. v. County of Ramsey, 461 N.W.2d 922, 924 (Minn.1990).

      . The only tax year at issue in this case is the year 2001; therefore, we refer to the 2000 statute.

      . The estimated market value is the value established by the assessor before any adjustments are made to the value of the property. See Minn.Stat. § 127A.48, subd. 5 (2002). This value reflects the assessor’s estimation of the property’s actual market value, the price at which it would sell on the open market. See Minnesota Tax Court, Presenting Property Tax Appeals to the Minnesota Tax Court, available at http://www.taxcourt.state.mn.us/Pro-SePPY.htm (last modified Sept. 24, 2003).

      . Pursuant to Minn.Stat. § 278.04 (2002), the Department of Revenue conducted a nine-month ''assessment/sales ratio study” to determine whether property in various taxing districts would qualify for equalization relief. According to a formula set forth in section 278.05, Harris was entitled to reduce the taxable value of his property by 5.6 percent.

      . The parties stipulated before the tax court that the limited market value provisions of Minn.Stat. § 273.11, subd. la, applied to the subject property and pursuant to the statute the assessor established a limited market value of $4,479,900 for the property.

      . Minnesota Statutes § 127A.48, subdivision 1 (Supp.2003), located in the education code, instructs the Department of Revenue to prepare an assessmenVsales ratio study to “determine an aggregate equalized net tax capacity for the various classes of taxable property in each [school] district.” The statute requires the department to complete the study using a "methodology consistent with the most recent Standard on Assessment Ratio Studies published by the assessment standards committee of the International Association of Assessing Officers” ("IAAO Standards”). Minn.Stat. § 127A.48, subd. 2 (2002). The statute further states that the Commissioner of Revenue “shall supplement this general methodology with specific procedures necessary for execution of the study in accordance. with other Minnesota laws impacting the assessment/sales ratio study.” Id.

      The IAAO Standards refer to both “direct” and "indirect” equalization. IAAO Standards § 2.3.2 (1999). The IÁAO makes clear, however, that constrained market values, such as limited market values in Minnesota, are appropriate only for indirect equalization, which estimates the aggregate tax base in various school districts or localities and, therefore, must account for statutory constraints on those tax bases. IAAO Standards §§ 2.3.2.2; 6.5.7. Similarly, the Department of Revenue refers to two distinct types of sales ratio studies that mirror the IAAO distinctions. The first, intended for use in equalization, matches sale prices against the assessors’ estimated market values, while the second, intended for calculation of state aids, compares sales with assessors' taxable market values. Minn. Dep’t of Revenue, 2003 Sales Ratio Study Criteria 1. The IAAO standards and the Department of Revenue's practice therefore support a reading of section 278.05, subdivision 4, under which limited market value is used only for the computation of state aids.

      . This contrasts with indirect equalization, which seeks to equalize the differences in tax capacities between different taxing districts. Because indirect equalization requires a determination of a taxing district’s aggregate tax capacity, it is appropriate to consider that capacity as it is affected by limited market value and other constraints on taxable value.


author: OPINION

text:
    STATE of Minnesota, Respondent, v. Darryl Lewis BERGH, Appellant.
    No. A03-1577.
    Court of Appeals of Minnesota.
    May 18, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Doug Johnson, Washington County Attorney, Heather D. Pipenhagen, Assistant Washington County Attorney, Stillwater, MN, for respondent.
    Charles A. Ramsay, Ramsay, DeVore & Olson, P.A., Roseville, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; SHUMAKER, Judge; and CRIPPEN, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant challenges the district court’s refusal to prohibit the use of a prior Colorado driving while intoxicated (DWI)-related driver’s license revocation to enhance Minnesota impaired driving offenses. Because the prior revocation arises from a violation of appellant’s Minnesota constitutional rights, the prior revocation cannot be used to enhance Minnesota offenses, and we reverse.

FACTS

The Minnesota Impaired Driving Code presents a scheme of penalties and enhanced penalties for driving, operating, or being in physical control of a motor vehicle while impaired from alcohol or other specified chemical substances. Minn.Stat. § 169A (2002). Certain qualified prior impaired driving incidents can be considered aggravating factors that permit enhancement of an impaired driving penalty. See Minn.Stat. § 169A.03, subd. 3(1) (“a qualified prior impaired driving incident within the ten years immediately preceding the current offense is an aggravating factor.”).

The state charged appellant Darryl Bergh with two counts of first-degree driving while impaired, both enhanced-penalty offenses, and one count of driving after revocation of his driver’s license. The state alleged that Bergh had three qualified prior impaired driving offenses that permitted enhancement of two of the current charges. See Minn.Stat. § 169A.24, subd. 1(1) (stating a person who has an impaired driving offense within ten years of three or more impaired driving incidents commits first-degree impaired driving).

Bergh had been convicted of DWI in Minnesota on June 22, 1994, and June 28, 2001. His driver’s license was revoked for both offenses. Bergh does not challenge the use of these convictions as aggravating factors. He challenges the use of his DWI conviction and license revocation in Colorado on August 22, 1995, as aggravating factors as applied to the current charges. The Colorado conviction and revocation were based on a chemical test. Under Colorado law, Bergh was not entitled to consult with an attorney before deciding whether to submit to chemical testing. Bergh argued at the omnibus hearing on the current offense that the Colorado statute violated his Minnesota constitutional right to the assistance of counsel and that neither the conviction nor the license revocation from Colorado could be used as an aggravating factor in Minnesota. The district court ruled that the Colorado criminal conviction could not be used to enhance the Minnesota offenses but that the license revocation could be so used.

Bergh then submitted the matter to the court under a Lothenbach stipulation. State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The court counted the Colorado license revocation as an aggravating factor and found Bergh guilty of the enhanced offenses and of driving after revocation of his driver’s license. Bergh appealed.

ISSUES

1. May an uncounseled Colorado driver’s license revocation be used in Minnesota to enhance impaired driving charges when the Minnesota Constitution provides motorists with the right to consult with an attorney before deciding whether to submit to blood-alcohol testing?

2. If the state and the appellant stipulate that under Colorado law a motorist has no pre-test right to consult with an attorney, is appellant’s affidavit stating that he submitted to testing without being given an opportunity to consult with counsel sufficient to carry appellant’s burden to produce evidence of violation of his constitutional right to counsel?

ANALYSIS

The district court’s denial of Bergh’s motion to prohibit the use of his Colorado license revocation to enhance his current charges raises an issue of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). This court reviews questions of law de novo. Id.

In Minnesota, a driver has a limited right to consult with an attorney before deciding whether to submit to blood-alcohol testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833 (Minn.1991). This right to counsel is guaranteed under article I, section 6, of the Minnesota Constitution. Id. at 833-34.

Under Colorado law, a motorist has no right to confer with counsel before deciding whether to consent to chemical testing. Calvert v. State, Dep’t of Revenue, Motor Vehicle Div., 184 Colo. 214, 519 P.2d 341, 343 (1974); Zahtila v. Motor Vehicle Div., Dep’t of Revenue, 39 Colo.App. 8, 560 P.2d 847, 849 (1977). Furthermore, under Colorado law, “[generally, when a suspect does not submit to the test because he wants to talk to his attorney before deciding whether to take the test, it is deemed a refusal as a matter of law.” Drake v. Colo. Dep’t of Revenue, Motor Vehicle Div., 674 P.2d 359, 361 (Colo.1984). It is clear that the Colorado law regarding pre-test right to counsel is not in accord with the Minnesota constitution.

Prior to 1998, the seminal case on the use of a prior uncounseled conviction to enhance a current offense was State v. Nordstrom, 331 N.W.2d 901 (Minn.1983). In Nordstrom, the Minnesota Supreme Court held that a prior uncounseled criminal conviction could not be used to enhance a later misdemeanor DWI offense to the level of a gross misdemeanor unless the right to counsel had been properly waived. Id. at 905.

In State v. Dumas, we considered the question of whether the Nordstrom prohibition extends to any prior uncounseled finding to enhance a latter charge or only to situations in which “the prior finding was obtained in violation of a defendant’s constitutional rights.” 587 N.W.2d 299, 302 (Minn.App.1998), review denied (Feb. 24, 1999). Our conclusion was that “we read Nordstrom as prohibiting the use of a prior unconstitutionally obtained conviction to enhance a subsequent charge.” Id. We also noted that “implied consent proceedings are considered criminal for purposes of a right to counsel before submitting to chemical testing.” Id. at 303.

Dumas is informative but is not controlling here. In Dumas, the motorist did not claim that he was denied pre-test assistance of counsel in violation of his constitutional rights. Id. at 302. Bergh, on the other hand, claims exactly that.

This case is controlled by State v. Friedrich, 436 N.W.2d 475 (Minn.App.1989). In Friedrich, the defendants pleaded guilty in Wisconsin to first-time DWI-related offenses that carried only civil penalties and for which no right to counsel was available. Id. at 476. The defendants were later charged with enhanced DWI offenses in Minnesota based on the prior Wisconsin offenses. Id. We held that because the prior Wisconsin convictions did not comport with the Minnesota constitution, they could not be used to enhance the Minnesota charges. Id. at 478.

It should be noted that although some cases have alluded to a distinction between civil and criminal labels in determining enhancement issues, we deem such an approach to be specious. In Minnesota, the entire constitutional focus is on the moment a motorist is asked to submit to a chemical test. At that moment, the limited constitutional right of assistance of counsel is triggered irrespective of what subsequent proceeding might ensue. Minnesota law does not make any distinction as to how the test results might be used. No matter if the test results are used in civil or criminal proceedings, the motorist has a constitutional right to counsel before deciding whether or not to test. That is the principle implicated here.

As in Friedrich, the denial of assistance of counsel to Bergh in Colorado violates the Minnesota constitution. Because the constitutional right' implicated does not depend on whether the test might be used in a criminal or civil proceeding, the constitutional violation is complete at the moment assistance of counsel is denied. Thus, Bergh’s Colorado license revocation, depending as it did on Bergh’s chemical test failure, violated Bergh’s Minnesota constitutional right and the revocation cannot be used to enhance Bergh’s current offenses.

The state raises the issue of whether Bergh produced sufficient evidence to support the conclusion that he was in fact denied assistance of counsel in Colorado. See State v. Mellett, 642 N.W.2d 779, 789 (Minn.App.2002) (holding that the defendant must come forward with some evidence that he was deprived of counsel before the state will have the burden to show the absence of a constitutional violation), review denied (Minn. July 16, 2002).

Bergh contends that the state has raised this issue improperly for the first time on appeal and thus has waived it. He also contends that he has satisfied his burden to produce the requisite evidence.

Although the state likely has waived this issue, we hold that Bergh did meet his burden of production. In his affidavit he states that he was arrested in Colorado for DWI and was not given an opportunity to consult with counsel before submitting to a blood test. These facts, which the state does not dispute, coupled with the state’s stipulation that, under Colorado law, Bergh was not entitled to consult with an attorney before submitting to a test, satisfy Bergh’s burden under Mellett. If this were a case solely involving Minnesota law, the affidavit would be insufficient because it does not reveal that Bergh requested assistance of counsel before his test decision. But in Colorado that request would have been futile, unless we are to speculate that the Colorado authorities would gratuitously violate Colorado law and allow Bergh to speak with a lawyer before choosing to test or not. We do not require affidavits to reflect engagement in futile acts.

DECISION

Because appellant’s prior Colorado license revocation resulted from an uncoun-seled chemical test, it violates his Minnesota constitutional rights and may not be used to enhance appellant’s current Minnesota offenses.

Reversed.

      . This limited right arises solely under the Minnesota constitution. The Sixth Amendment right to counsel under the federal constitution is not implicated.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Charles Conrad HAGEN, Appellant.
    No. C0-02-1318.
    Court of Appeals of Minnesota.
    May 25, 2004.
    Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.

      John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; SCHUMACHER, Judge; and ANDERSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

The supreme court has remanded the appeal of Charles Conrad Hagen from his sentence for first-degree criminal sexual conduct for reconsideration in light of the court’s opinion in Taylor v. State, 670 N.W.2d 584 (Minn.2003). This court ordered supplemental briefing, in which Ha-gen argues that the less-than-double upward departure in this case was an abuse of discretion. We affirm.

FACTS

Hagen pleaded guilty in March 2002 to first-degree criminal sexual conduct committed against 13-year-old J.N., an autistic girl who lived in the house in which Hagen rented an apartment. The complaint charged a single count under Minn. Stat. § 609.342, subd. 1(g), which requires that the offender engaged in sexual penetration with a victim under the age of 16 with whom he had a “significant relationship.”

The plea agreement, as outlined in the Rule 15 plea petition, provided that Hagen would plead guilty to the offense as charged and be able to “argue down[ward] departure based on amenability to probation.” In the guilty-plea hearing, Hagen admitted that he sexually penetrated J.N. Hagen testified that his attorney had discussed with him the “significant relationship” element, which was based on his living in the same residence as the victim.

At sentencing, the district court characterized this case as “one of the more horrendous cases of child sexual abuse that I have seen.” The district court sentenced Hagen to 216 months, an upward departure from the presumptive sentence of 144 months. In support of the departure, the court stated:

The basis for that departure is that you entered the victim’s zone of privacy, that being that this took place in her home, and outside of the home for that matter; that it created great psychological and emotional trauma to the victim in this case; and, most importantly, that this child was particularly vulnerable due to her many disabilities.

The court concluded that these factors, along with “the deception that [Hagen] engaged in,” supported the departure.

ISSUE

Was the upward departure an abuse of discretion under Taylor v. State 670 N.W.2d 584 (Minn.2003)?

ANALYSIS

The decision to depart from the presumptive sentence rests within the discretion of the district court and will not be disturbed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). But the sentencing court has no discretion to depart unless aggravating or mitigating factors are present. State v. Spain, 590 N.W.2d 85, 88 (Minn.1999).

The supreme court in Taylor reduced a less-than-double upward departure for first-degree criminal sexual conduct to the presumptive 144-month sentence. 670 N.W.2d at 585. The court first- rejected the three aggravating circumstances cited by the district court in that case: (1) “multiple incidents of abuse”; (2) abuse of the defendant’s position of trust; and (3) vulnerability of the victim due to age. Id. at 588-89. The first factor was rejected because the complaint charged only a single incident of sexual abuse, and the supreme court concluded it would be unfair to use “prior uncharged sex offenses” to depart. Id. at 588. The last two factors were rejected because they were “facts [that] were already taken into account by the legislature in determining the degree of seriousness of the offense.” Id. at 589. Finally, the supreme court noted the many changes in the laws relating to sex offenders, including increases in presumptive and mandatory sentences, and implementation of “risk management tools.” Id. at 589-90. In a general comment on appellate sentence review, the court concluded:

It is within this framework of risk management tools not in place at the time of our prior decisions that district courts now exercise discretion in sentencing and that we discharge our responsibility under Minn.Stat. § 244.11 in reviewing upward durational sentencing departures.

Id. at 590.

The district court here cited the violation of the victim’s zone of privacy, the psychological trauma suffered by the victim, and the victim’s vulnerability due to multiple disabilities as aggravating factors. None of these factors depends on facts not charged in the complaint or admitted by Hagen. Nevertheless, Hagen argues that these factors do not support the departure.

We agree that violation of the zone of privacy is not an aggravating factor in this case. Hagen lived in the same residence as J.N. A victim’s bedroom may constitute a zone of privacy even if the victim lives in the same house as the defendant. State v. Griffith, 480 N.W.2d 347, 351 (Minn.App.1992), revieiu denied (Minn. Mar. 19, 1992). But in this case, according to the complaint, the offense occurred in Hagen’s basement living quarters, not in the victim’s bedroom. Hagen’s basement apartment is not part of the victim’s zone of privacy. ■

Hagen also argues that the victim’s trauma is typical of this type of offense and therefore cannot be used as a basis for departure. See State v. Cermak, 344 N.W.2d 833, 839 (Minn.1984). A sexual assault victim’s psychological and emotional trauma may support a less-than-double upward departure. State v. Allen, 482 N.W.2d 228, 233 (Minn.App.1992), review denied (Minn. Apr. 13, 1992). In Cermak, the supreme court stated in dictum that it is “arguable” that “there is always psychological injury inflicted on the victim” in a first-degree criminal sexual conduct case involving a victim under the age of 13. 344 N.W.2d at 840. But Hagen cites no case reversing a departure based on this dictum.

Hagen also argues that he did not exploit J.N.’s vulnerability due to autism or the other disabilities implied in the district court’s reference to “many disabilities.” But the victim-impact statement from J.N.’s mother states that Hagen had known the family since J.N. was five, and knew the family’s struggles in dealing with J.N.’s autism, ADHD, behavior disorders, and obsessive-compulsive disorder. It is clear that Hagen knew of J.N.’s disabilities, and it can be inferred that he induced her “consent” to sexual relations by exploiting those disabilities.

Thus, the record supports the district court’s reliance on the victim’s psychological trauma and her vulnerability due to her disabilities. Hagen argues, however, that these factors were already considered by the legislature in determining the seriousness of the offense, just as the abuse of a position of authority was held to have been legislatively considered in Taylor.

But even if a degree of psychological trauma may have been considered typical by the legislature, the psychological trauma to J.N. appears to have been substantial. In the victim-impact statement, J.N.’s mother related that her daughter was attending counseling sessions, had become obsessive about men and their sexual organs to the point of performing a sexual act on a little boy, continued to be devastated by the offense, and to display both fear and anger over it.

The statute under which Hagen was charged does not presume the victim is disabled or vulnerable, except with respect to age. Another statutory provision, not charged here, requires that the victim be “mentally impaired, mentally incapacitated, or physically helpless.” Minn.Stat. § 609.342, subd. l(e)(ii) (2002). J.N.’s autism, ADHD, behavior disorders, and obsessive-compulsive disorder cannot be considered facts already taken into account by the legislature in determining the seriousness of Hagen’s offense. Thus, we conclude that both J.N.’s psychological trauma and her multiple disabilities are legitimate aggravating factors that are not barred under Taylor as facts already considered by the legislature in defining the seriousness of the offense. But under Taylor, we must also consider whether the degree of departure in this case was supported by those aggravating factors.

Before Taylor was released, the presence of victim vulnerability due to a disability, combined with another significant aggravating factor such as the psychological trauma in this case, would have supported up to a double departure. See State v. Douglas, 501 N.W.2d 694, 698-99 (Minn.App.1993) (affirming double departure for second-degree felony murder based on vulnerability of mentally retarded victim, along with invasion of zone of privacy and particular cruelty), review denied (Minn. Aug. 16, 1993); State v. Graham, 410 N.W.2d 395, 397 (Minn.App.1987) (affirming double departure for first-degree burglary based on handicapped victim’s vulnerability, along with particular cruelty, permanent injuries, and atypical seriousness of offense), review denied (Minn. Sept. 30, 1987); Stephens v. State, 369 N.W.2d 603, 605 (Minn.App.1985) (affirming less than 50% departure for first-degree criminal sexual conduct based on particular vulnerability of young, uneducated victim who had been drinking, as well as particular cruelty and psychological trauma).

The supreme court in Taylor cited changes in “risk management tools” unrelated to sentencing durations as one reason for heightened appellate scrutiny of sentencing departures. 670 N.W.2d at 590. Many of these “risk management tools,” such as registration, DNA sampling, community notification, and the possibility of civil commitment, while they relate to public safety, do not affect the length of the offender’s sentence. Traditionally, public safety was not a permissible aggravating factor to be used in determining the length of sentence. See State v. Hagen, 317 N.W.2d 701, 703 (Minn.1982) (holding defendant’s future dangerousness could not be used to support durational departure). And Taylor indicates that this court may recognize that public safety, although a factor the legislature may have considered in determining the presumptive or mandatory minimum sentence, is also being addressed by provisions other than those affecting sentence durations.

Taylor requires heightened scrutiny of upward departures in first-degree criminal-sexual-conduct cases due to changes in the laws relating to sex offenders, including these “risk management tools” unrelated to sentence duration. 670 N.W.2d at 590. It would be improper to depart upwards in sentencing on the assumption that only an increased prison sentence can adequately serve public safety. But even under this heightened scrutiny, we conclude the aggravating factors present here, which would have supported up to a double departure before Taylor, remain sufficient to support the 50% departure imposed.

DECISION

The district court did not abuse its discretion in imposing a 50% upward departure.

Affirmed.