author: PORITSKY, Judge.

text:
    MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Relator, v. MINNESOTA POLLUTION CONTROL AGENCY, Respondent.
    No. C6-02-1243.
    Court of Appeals of Minnesota.
    May 6, 2003.

      Janette K. Brimmer, St. Paul, for relator.
    Mike Hatch, Attorney General, and Paul A. Merwin, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge, and HUDSON, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Respondent issued a general permit covering the discharge of storm water by small municipalities. On certiorari, relator challenges respondent’s issuance of the general permit, arguing: (1) the issuance of the general permit violates Minn. R. 7001.0210 because the permittees are not similarly situated; (2) the issuance of the general permit denies the public notice and the ability to comment on the extension of that permit to local municipalities; (3) the issuance of the general permit allows degradation of public waters and therefore violates Minn. R. 7050.0185 and 40 C.F.R. § 131.12; (4) the general permit weakens the federal standard; (5) the general permit is impermissibly vague and violates state and federal water quality standards; (6) respondent relied on non-controlling case law in issuing the general permit; and (7) the general permit does not require appropriate monitoring. We conclude that (1) the general permit violates the Clean Water Act by denying the public notice and the ability to comment; (2) the respondent failed to make a determination of whether the general permit will cover expanded discharges of storm water requiring additional control measures; and (3) the general permit impermissibly departs from the federal standard for reducing pollutants; we reverse and remand. We affirm on all other issues.

FACTS

Small municipalities that discharge storm water through municipal separate storm sewer systems (MS4s) are subject to regulation by respondent Minnesota Pollution Control Agency (MPCA). MPCA acts pursuant to powers delegated to it by the federal Environmental Protection Agency (EPA). As a result of this delegated power, MPCA has the authority to implement the federal Clean Water Act (CWA) in Minnesota.

The CWA was enacted by Congress in 1972, and it prohibits the discharge of any pollutant into navigable waters of the United States from a point source unless the discharge is authorized by a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. § 1311(a) (2000); 33 U.S.C. § 1342(p)(3)(B) (2000); 40 C.F.R. § 122.26 (2002). MPCA is the authority that issues NPDES permits in Minnesota. EPA initially attempted to exempt municipal storm sewer systems from the requirement to obtain an NPDES permit. But in the Water Quality Act of 1987, Congress amended the CWA to specifically cover storm water discharges from conveyances such as MS4s. 33 U.S.C. § 1342(p) (added by Pub.L. 100-4, Title IV, Feb. 4, 1987). Section (p) governs the granting of permits for MS4s and certain other storm water systems.

As a result of the amendment to the Clean Water Act, large and medium municipalities were required to obtain permit coverage by 1993. Small municipalities, however, were not required to obtain permit coverage until 2003. The large and medium municipalities were referred to as Phase I permittees, while the small municipalities were referred to as Phase II per-mittees. It is the Phase II permit process that we review in this case.

Thus, in order to discharge storm water from MS4s, the small municipalities must obtain an NPDES permit from MPCA. The Clean Water Act provides that permits for such discharges:

(i) may be issued on a system- or jurisdiction-wide basis;
(ii) shall include a requirement to effectively prohibit nonstormwater discharges into the storm sewers; and
(iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator [of EPA] or the State determines appropriate for the control of such pollutants.

33 U.S.C. § 1342(p)(3)(B).

In early 2002, MPCA sought initial comments on a draft NPDES general permit for storm water discharges by MS4s. A general permit is a permit issued under Minnesota Rules to a “category of permit-tees whose operations, emissions, activities, discharges, or facilities are the same or substantially similar.” Minn. R. 7001.0010, subp. 4. By using a general permit in this case, MPCA utilized a process whereby only the general permit was subject to public notice and comment and other procedures, and each individual per-mittee needed only to complete an application to obtain coverage under the general permit. Coverage under the permit allows permittees to begin or continue discharging storm water into the waters of the United States.

Relator MCEA submitted comments on the general permit in February 2002 and also appeared at the February 2002 MPCA Citizens Board meeting to present testimony. On March 11, 2002, MPCA published notice of the general permit in the Minnesota State Register. MCEA submitted comments in April 2002, incorporating its February 2002 comments. Also in April 2002, MCEA requested a contested case hearing.

On May 28, 2002, the Board heard testimony from MPCA staff and others regarding the general permit. One subject of comment was MPCA’s approach to compliance with Minnesota’s non-degradation rules. Minn. R. 7050.0180-0186. The issue was addressed as an informational item, and MCEA and other interested parties had an opportunity to comment on it. At the May 28 meeting, the Board voted to keep the record open for additional comments and submissions through June 4, 2002. MCEA submitted additional comments and materials on June 4, 2002.

MCEA’s contested case request and the general permit came before the Board for final approval and hearing on June 25, 2002. At the conclusion of the June 25, 2002, meeting, the Board voted 7-0 to deny MCEA’s contested case request in its entirety and 6-1 to approve the general permit as amended June 11.

The MPCA Commissioner executed the Findings of Fact, Conclusions of Law and Order denying the contested case request and approving the general permit on June 28, 2002. The MCEA filed its petition for writ of certiorari on July 25, 2002.

ISSUES

I. Does the issuance of the general permit violate Minn. R. 7001.0210 because the permittees are not similarly situated?

II. Does the issuance of the general permit impermissibly deprive the public of its right to notice and comment on the discharge of storm water by the MS4s regulated by the permit?

III. Does the general permit violate state non-degradation rules (Minn. R. 7050.0185)?

IV. Does the use of the word minimize in the general permit impermissibly weaken the federal standard requiring that per-mittees reduce pollutants to the maximum extent practicable?

V. Is the general permit impermissibly vague and in violation of state and federal water quality standards?

VI. Did respondent erroneously rely on non-controlling case law in issuing the general permit?

VII. Does the general permit meet state monitoring requirements?

ANALYSIS

Final decisions of MPCA are reviewed under Minn.Stat. §§ 14.63-69 (2002). Minn.Stat. § 115.05, subd. 11 (2002). Minn.Stat. § 14.69 provides that a reviewing court is limited to determining whether the agency decision is

(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary or capricious.

Minn.Stat. § 14.69. The relator has the burden of proof when challenging an agency decision in an appeal. Markwardt v. Water Res. Bd., 254 N.W.2d 371, 374 (Minn.1977) (interpreting Minn.Stat. § 15.0425, current version at § 14.69).

When reviewing an agency decision, we

adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.

Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). The agency decision-maker is presumed to have the expertise necessary to decide technical matters within the scope of the agency’s authority. In re Special Instruction & Servs. for Pautz, 295 N.W.2d 635, 637 (Minn.1980). Generally, this court defers to an agency’s interpretation of its own rule

when the language subject to construction is so technical in nature that only a specialized agency has the experience and expertise needed to understand it, when the language is ambiguous or when the agency interpretation is one of long standing.

Resident v. Noot, 305 N.W.2d 311, 312 (Minn.1981) (citations omitted). But this court does not give deference to the agency interpretation “if the language of the regulation is clear and capable of understanding.” In re St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 40 (Minn.1989) (citations omitted).

I.

The first issue we consider is whether the issuance of a general permit was appropriate under the Minnesota rule governing general permits. MCEA argues that the issuance of a general permit is not appropriate because respondent MPCA has not found, and cannot find, that the requirements of Minn. R. 7001.0210 have been met.

Rule 7001.0210 provides that an agency may issue a general permit only if the agency finds that all the permittees have same or substantially similar characteristics. Specifically, the rule provides that the agency may only issue a general permit if the agency finds that:

A. there are several permit applicants or potential permit applicants who have the same or substantially similar operations, emissions, activities, discharges, or facilities;
B. the permit applicants or potential permit applicants discharge, emit, process, handle, or dispose of the same types of waste;
C. the operations, emissions, activities, discharges, or facilities are subject to the same or substantially similar standards, limitations, and operating requirements; and
D. the operations, emissions, activities, discharges, or facilities are subject to the same or substantially similar monitoring requirements.

Minn. R. 7001.0210, subp. 3.

MCEA essentially argues that the issuance of a general permit is inappropriate for both procedural and substantive reasons. MCEA’s procedural argument is that Minn. R. 7001.0210, subp. 3 requires MPCA to make explicit findings that the requirements of subpart 3 have been met before MPCA can issue a general permit. MCEA’s substantive argument is that the requirements of subpart 3 have not been and cannot be met in this case because the MS4s being regulated do not have similar characteristics.

MCEA’s procedural argument is not persuasive. The rule says “the agency shall not issue a general permit unless the agency finds,” but the rule does not require explicit findings. It is inherent in MPCA’s issuance of the general permit that MPCA found that the requirements of subpart 3 had been met.

Nor do we find persuasive MCEA’s substantive argument that the requirements of subpart 3 cannot be met in this case. We turn first to paragraphs A and B of subpart 3. In each of those paragraphs, the rule lists the common characteristics that must be found and uses the disjunctive word or. Minn. R. 7001.0210, subp. 3. Thus, the permittees need only be the same or substantially similar in one characteristic to meet the requirements of paragraphs A and B. The permittees in this case will all be discharging storm water. Both paragraphs A and B list the same or substantially similar discharges as one characteristic that permittees must have in common. Accordingly, the requirements of paragraphs A and B are met.

Paragraphs C and D of subpart 3 require that the permittees be subject to the same or substantially similar standards and monitoring requirements. As applied to this case, paragraph C is met if “discharges * * * are subject to the same or substantially similar standards, limitations, and operating requirements,” and paragraph D is met if the “discharges * * * are subject to the same or substantially similar monitoring requirements.” In this case, all of the permittees are MS4s, and as such, they are all subject to the same state and federal standards and requirements for discharging storm water.

II.

The general permit in this case provides that as each small municipality applies for coverage under the general permit, the municipality must develop a Storm Water Pollution Prevention Program (SWPPP) and file a summary of that SWPPP with MPCA. MCEA argues that because the individual SWPPP sets forth how permittees will comply with the general permit and because the public does not have an opportunity to be heard on the terms of each SWPPP, the general permit effectively deprives the public of notice and comment. MPCA responds that the public had an opportunity to comment on the terms of the general permit, but that the public does not have a right to comment on how permittees will comply with the permit.

Public participation is a critical means of advancing the goals of the Clean Water Act. 33 U.S.C. § 1251(e); see also Costle v. Pac. Legal Found., 445 U.S. 198, 216, 100 S.Ct. 1095, 1106, 63 L.Ed.2d 329 (1980) (noting the “general policy of encouraging public participation is applicable to the administration of the NPDES permit program”). Section 1342© of the Clean Water Act requires that “[a] copy of each permit application and each permit issued under [the NPDES program] shall be available ' to the public.” 33 U.S.C. § 1342© (2002). And before a permit is approved, the act requires that the public have an opportunity for a hearing. 33 U.S.C. § 1342(a)(1) (2002).

The substantive details for storm water control will be contained in each SWPPP. A municipality obtains immediate coverage under the general permit as soon as the municipality files its application. There is no public notice of the application, nor is there public notice of the SWPPP. There is also no opportunity for public comment or delay of coverage under the general permit. We note, however, that the general permit does require each permittee to file an annual report discussing its compliance with the terms of the SWPPP, and each permittee is required to hold a public meeting to discuss its annual report and consider all public input when evaluating its SWPPP.

In this case, the SWPPPs contain the substantive information on how small municipalities will comply with the Clean Water Act, and MPCA concedes that the SWPPPs are the “core” of the general permit. The SWPPPs are the state equivalent to the permit applications required by the federal Clean Water Act and are subject to the CWA’s public availability and public hearing requirements. Neither the single hearing held before the general permit was issued, nor the public meetings to discuss the annual reports after the implementation of the SWPPPs, are substitutes for a public hearing held before the SWPPPs are implemented. Because there is no opportunity for public hearings on each SWPPP, the general permit procedure violates the public participation requirements of the Clean Water Act. We conclude that the public is entitled to be heard on each SWPPP.

III.

Next we consider MCEA’s argument that the issuance of the general permit in this case violates the state non-degradation policy, as contained in Minn. R. 7050.0185, which was enacted pursuant to the EPA’s directive in 40 C.F.R. 131.12.

The non-degradation rule is designed to prevent degradation of water quality by freezing pollutant mass loadings, i.e., pollutant levels, at levels no higher than their levels in 1988, when the rule was enacted. Minn. R. 7050.0185. The rule applies to storm water discharges. Minn. R. 7050.0185, subp. 1 (“It is the policy of the state of Minnesota to protect all waters from significant degradation from point and nonpoint sources * * *.”) (Emphasis added.)

Under the rule, MPCA is required to determine whether additional control measures should be taken to reduce the impact on the receiving water of new or expanded significant discharges.

If a person proposes a new or expanded significant discharge from either a point or nonpoint source, the agency shall determine whether additional control measures beyond those required by subpart 3 can reasonably be taken to minimize the impact of the discharge on the receiving water.

Minn. R. 7050.0185, subp. 4.

MPCA has not made this determination. MCEA argues that the rule applies in this case and requires MPCA to determine whether additional control measures are necessary. MPCA argues that Rule 7050.0185 does not apply because the storm water discharges in this case are not new or expanded discharges within the meaning of the rule. The rule defines new discharge as a “discharge that was not in existence before January 1, 1988.” Minn. R. 7050.0185, subp. 2(A). An expanded discharge is a discharge that

changes in volume, quality, location or any other manner after January 1, 1988, such that an increased loading of one or more pollutants results. In determining whether an increased loading of one or more pollutants would result from the proposed change in discharge, the agency shall compare the loading that would result from the proposed discharge with the loading allowed by the agency on January 1,1988.

Minn, R. 7050.0185, subp. 2(B).

While MPCA may be correct that the storm water discharges are not new discharges because municipalities discharged storm water before 1988, it admits that “[ajrguably, there may be some situations in which a permittee’s discharge could be new or increased since 1988.” The record reflects that populations have increased near the various bodies of water at issue in this case; thus MCEA made a showing that there are expanded significant discharges from MS4s covered by the general permit.

We conclude that MPCA must comply with subpart 2(B) and determine whether the discharges are in fact expanded discharges. We note that even if MPCA determines the discharges are expanded discharges, the agency still has discretion to determine “whether additional control measures beyond those required by sub-part 8 can reasonably be taken to minimize the impact of the discharge on the receiving water.” Minn. R. 7050.0185, subp. 4.

IV.

We next address whether the general permit impermissibly weakens the federal standard. Federal law requires that permits for discharges from municipal storm sewers “shall require controls to reduce the discharge of pollutants to the maximum extent practicable.” 33 U.S.C. § 1342(p)(3)(B)(iii) (2002) (emphasis added). The general permit requires permit-tees to “minimize the discharge of pollutants” to the maximum extent practicable.

MCEA argues the use of the word “minimize” instead of “reduce” is an intentional attempt to weaken the federal standard. MPCA responds that the difference is merely semantic and has no real meaning. If there is no difference between the two words, the general permit should adhere to the federal wording: to use two words with the same meaning would be a source of confusion. If there is, in fact, a difference between the two words, then there is a significant possibility that the general permit does not comply with the federal requirement that the pollutants be “reduced.” On remand, MPCA should adhere to the federal standard in the permit.

V.

Next we consider MCEA’s argument that the general permit violates various state and federal water quality standards. Because the only specific standard identified by the MCEA appears in Minn. R. 7001.1080, we will only address whether the general permit violates that rule.

Minn. R. 7001.1080 provides that “[e]x-cept as provided in subpart 3, the commissioner shall establish effluent limitations * * * for each pollutant to be discharged.” Minn. R. 7001.1080, subp. 2. Subpart 3 of the rule provides as follows:

If the commissioner finds that it is not feasible to establish an effluent limitation, standard, or prohibition using a numerical value, the commissioner shall establish permit conditions requiring the implementation by the permittee of best management practices.

Minn. R. 7001.1080, subp. 3.

In this case, MPCA found that it was not feasible to establish numerical effluent limitations. MPCA’s finding that numerical effluent limitations are not feasible is supported by evidence in the record. MPCA relied on a statement by EPA that

pollutants from wet weather discharges are most appropriately controlled through management measures rather than end-of-pipe numeric effluent limitations. * * * EPA believes that the currently available methodology for derivation of numeric water quality-based effluent limitations is significantly complicated when applied to wet weather discharges from MS4s * * ⅜. Wet weather discharges from MS4s introduce a high degree of variability in the inputs to the models currently available for derivation of water quality based effluent limitations, including assumptions about instream and discharge flow rates, as well as effluent characterization. In addition, EPA anticipates that determining compliance with such numeric limitations may be confounded by practical limitations in sample collection. * * * If the permitting authority * ⅜ * needs to impose additional or more specific measures to protect water quality, then that action will most likely be the result of an assessment based on a TMDL or equivalent analysis that determines sources and allocations of pollutant(s) of concern.

(Quoting 64 Fed.Reg. at 68753 (1999)). Giving deference to MPCA’s expertise in this area, we uphold MPCA’s determination that numerical effluent limitations are not feasible.

VI.

Next we address whether MPCA imper-missibly relied on non-controlling case law in issuing the general permit. MCEA argues that MPCA should not have relied on Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir.1999) because it is a ninth circuit case and because the facts of that case are distinguishable from the facts in this case.

But we do not agree that MPCA “relied” on Defenders of Wildlife. In issuing the general permit, MPCA’s only reference to that case is:

The federal Clean Water Act does not regulate storm water through water quality based regulation, but instead by requiring the removal of pollutants to the maximum extent practicable. See Defenders of Wildlife v. Browner, 191 F.3d at 1165-66.

Additionally, whether MPCA “relied” on Defenders of Wildlife is beside the point. The real issue in this case is whether MPCA complied with federal and state law as embodied in rules and statutes. MPCA’s citation to Defenders of Wildlife has no bearing on whether the issuance of the general permit was proper.

In any event, we note that although the Eighth Circuit has not ruled on the issue, the United States District Court for the District of Minnesota recently ruled on the issue and followed Defenders of Wildlife. Mississippi River Revival, Inc. v. City of St. Paul, No. 01-1887, 2002 WL 31767798 (D.Minn. Dec.2, 2002). In Mississippi River Revival, the court noted “unlike industrial storm water discharges, the CWA does not require water quality-based standards for municipal storm water discharges.” Id. at *5 (citing Defenders of Wildlife, 191 F.3d at 1165-66).

VII.

Finally, we address whether the general permit violates the rule requiring monitoring requirements in permits.

Rule 7001.1080 sets out certain mandatory conditions that must appear in the permit. The rule provides that:

A. In addition to the requirements in part 7001.0150, subpart 2, the commissioner shall establish appropriate monitoring and reporting of monitoring requirements to ensure compliance with permit limitations.

Minn. R. 7001.1080, subp. 5. MCEA does not argue that MPCA failed to comply with Rule 7001.1080. Its argument focuses instead on Rule 7001.0150, which provides:

Each draft and final permit must contain conditions necessary for the permit-tee to achieve compliance with applicable Minnesota or federal statutes or rules * * * and any conditions that the agency determines to be necessary to protect human health and the environment. If applicable to the circumstances, the conditions must include:
B. Requirements for monitoring and testing and reporting of monitoring and testing results. Monitoring and testing requirements must specify the type, interval, and frequency of monitoring and testing activities that are sufficient to yield representative data to determine whether there is compliance with the terms and conditions of the permit or compliance with Minnesota and federal pollution control statutes and rules.

Minn. R. 7001.0150, subp. 2 (emphasis added).

MCEA argues that the general permit violates the monitoring rules because the permit does not specify the type, interval, and frequency of monitoring and testing, which requirements appear in Rule 7001.0150. MPCA contends that the permit does not have to contain the monitoring requirements discussed in Rule 7001.0150 because those requirements are not “applicable to the circumstances.”

In our view, the rule clearly leaves the matter within the agency’s expertise to determine whether additional monitoring requirements are “applicable to the circumstances.” MPCA’s determination that the specific monitoring requirements in Rule 7001.0150, subp. 2 are not applicable to the circumstances of storm water is the agency’s interpretation of its own rule. As we have already noted, we give deference to an agency’s interpretation of its own rule, and agency decisions enjoy a presumption of correctness. Resident v. Noot, 305 N.W.2d at 312; In re Pautz, 295 N.W.2d at 637; Herbst, 256 N.W.2d at 824. MCEA has not presented any argument or authority that supports reversing MPCA on this issue. Accordingly, we conclude that the general permit does not violate the rules requiring monitoring requirements in general permits.

DECISION

Because the general permit violates the Clean Water Act’s requirement of public participation; because there is a possibility that the storm water discharges covered by the general permit are expanded discharges; and because the general permit may weaken the federal standard for reducing pollutants by using the word “minimize,” we remand the general permit to MPCA for further proceedings consistent with this opinion.

Reversed and remanded.

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

      . “Point source” means a discernible, discrete source, such as a pipe, ditch, or conduit. Cf. Minn. R. 7001.1020, subp. 23, for a more detailed listing. “Nonpoint source” means any land management or land use activity that contributes or may contribute to ground or surface water pollution and is not defined as a point source. Minn. R. 7050.0130(C).

      . As we have noted, the general permit procedure allows permittees to obtain coverage under the permit by simply submitting their application. The record does not reflect any review of the applications by MPCA to ensure that the applications contain the necessary requirements. This lack of review adds to the troubling aspects of the general permit procedure followed in this case.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    Lisa A. BROEK, trustee for the next-of-kin of Alan L. Uetz, decedent, Appellant, v. PARK NICOLLET HEALTH SERVICES, et al., Respondents.
    No. C9-02-1611.
    Court of Appeals of Minnesota.
    May 6, 2003.
    David F. Herr, Margaret A. Garvin, Maslon Edelman Borman & Brand, L.L.P., and James S. Reece, Zelle, Hofmann, Voel-bel, Mason & Gette, L.L.P., Minneapolis, for appellant.

      Katherine A. McBride, James F. Roegge, Meagher & Geer, P.L.L.P., Minneapolis, for respondents.
    Considered and decided by LANSING, Presiding Judge, and STONEBURNER, Judge, and MINGE, Judge.
   OPINION

LANSING, Judge.

The district court determined that the medical-malpractice statute of limitations barred this wrongful-death action. Decedent’s trastee appeals, contending that the statute of limitations does not begin to ran until a cause of action accrues and that the cause of action did not accrue in 1993, when decedent received the allegedly negligent medical advice, but in 2000, when decedent first suffered injury. Because a cause of action cannot accrue until injury occurs, and because the record is undisputed that decedent sustained no injury arising from the alleged negligence until he collapsed in September 2000, we reverse and remand.

FACTS

This case involves a dispute over whether the statute of limitations operates to bar a cause of action in a medical-malpractice, wrongful-death action brought by Lisa Broek, the trustee for and widow of Alan Uetz. Uetz died at age thirty-nine after suffering cardiac arrest while playing racquetball. As a teenager, Uetz had been diagnosed with a ventricle septal defect (VSD), an abnormal heart condition in which there is an opening or defect in the septum, the muscular wall separating the two ventricles of the heart. He was monitored for that condition by physicians at the University of Iowa, who placed no restrictions on his activities. In 1991, he had an echocardiogram in Iowa, which revealed that rather than VSD, he suffered from idiopathic hypertrophic subaortic stenosis (IHSS), a heart-muscle disease of unknown cause that is typically inherited.

Shortly after this diagnosis Uetz moved from Iowa to the Twin Cities where he was seen at Park Nicollet Medical Center. Uetz reported in a June 1992 visit to Park Nicollet that he had no chest pain or trouble breathing and that he had taken medication for about nine months but had stopped because it gave him severe heartburn. Two months later, Uetz saw Dr. Phillip Ranheim at Park Nicollet. Ran-heim noted that Uetz had been treated with Lopressor, which Uetz could not tolerate because of stomach distress and pain. Ranheim reported that Uetz was very active, playing basketball, racquetball, jogging, walking, and exercising regularly two to three times a week without any cardiac symptoms. Ranheim recommended that Uetz receive screening laboratory studies and another echocardiogram to establish “a baseline.”

Uetz had the echocardiogram on February 12, 1993. On February 19, Ranheim wrote to Uetz, stating that the echocardio-gram was “really very satisfactory” and showed “nothing * * ⅜ alarming.” Ran-heim continued, “From this echocardio-gram, I would not feel that you should restrict any of your activities.” He recommended that Uetz return for blood tests, concluding, “We should see you every couple of years to make sure that everything stays stable. If you have problems and want to come in before that time, just give my office a call.”

Uetz did not return to Dr. Ranheim, nor did he follow up with any other cardiologist. On September 5, 2000, while playing racquetball, Uetz suffered cardiac arrest. He died about three weeks later without regaining consciousness.

Uetz’s widow, Lisa Broek, initiated this medical-malpractice, wrongful-death action on March 4, 2002. Park Nicollet and Ran-heim moved for summary judgment, contending that the action was time-barred by the statute of limitations applicable to wrongful-death claims.

In opposition to the summary-judgment motion, Broek submitted an expert affidavit from Dr. Barry Marón, Director of the Hypertrophic Cardiomyopathy Center of the Minneapolis Heart Institute Foundation, stating Maron’s opinion that, at the time Uetz was seen at Park Nicollet, it was known that “vigorous physical activity with hypertrophic cardiomyopathy [which includes the condition of IHSS] can trigger ventricular fibrillation and lead to sudden death, even when the condition is otherwise stable.” Marón stated that based on his review of the medical records, his opinion to a reasonable degree of medical certainty was that Uetz suffered no injury or damage as a result of the alleged negligence (the advice that it was unnecessary to restrict physical activities) until his collapse on September 5, 2000.

After a hearing, the district court granted the motion for summary judgment, concluding that the medical opinion that no damage was suffered until September 5, 2000, was not determinative of the narrow legal issue. The court concluded that the cause of action arose at the time of the alleged failure to provide proper treatment, that the physician-patient relationship terminated in February 1993, and that evidence of termination of the physician-patient relationship provided a more compelling basis for determining the accrual of the action than an inference of continuing fault. This appeal followed.

ISSUE

Whether the district court erred in determining that the wrongful-death action based on a medical-malpractice claim accrued at the conclusion of treatment instead of the time of injury?

ANALYSIS

When we review a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Wallin v. Letour-neau, 534 N.W.2d 712, 715 (Minn.1995); see Minn. R. Civ. P. 56.03 (setting forth district court standard for summary judgment). If the facts on which summary judgment is granted are undisputed, we review de novo whether the district court erred in applying the law to determine the accrual of the cause of action and the running of the statute of limitations. Weeks v. Am. Family Mut. Ins. Co., 580 N.W.2d 24, 26 (Minn.1998).

In Minnesota, the statute of limitations for a wrongful-death action occurring as a result of medical malpractice begins to run at the same time as the limitation period for the decedent’s medical-malpractice claim. DeRogatis v. Mayo Clinic, 390 N.W.2d 773, 776 (Minn.1986). Therefore, in order to determine whether the statute of limitations precludes Broek from asserting her wrongful-death action, we must determine the applicable medical-malpractice statute of limitations for the alleged negligence of Ranheim and Park Nicollet in treating Uetz. Ranheim and Park Nicollet contend that the limitation period in this case is prescribed by the statute in effect at the time Ranheim last treated Uetz in 1993. See Minn.Stat. § 573.02, subd. 1 (1992) (providing that “[a]n action to recover damages for a death caused by the alleged professional negligence of a physician [or] * * * hospital * ⅜ * shall be commenced within the time set forth in section 541.07, subdivision 1”); see also Minn.Stat. § 541.07 (1992) (providing that tort actions resulting in personal injury and actions for malpractice, error, mistake, or failure to cure, whether based in contract or in tort, “shall be commenced within two years”).

In 1999, however, the legislature changed the law by enacting MinmStat. § 541.076 (Supp.1999), a statute dealing specifically with malpractice actions against health-care providers. Under the new statute, malpractice actions against providers “must be commenced within four years from the date the cause of action accrued.” Id. The statute went into effect on August 1, 1999, and applies to actions commenced on or after that date. 1999 Minn. Laws ch. 23, § 3; see also Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 419-20 (Minn.2002) (holding that Minn.Stat. § 541.076 operates retroactively to revive plaintiffs’ claims that would have expired under prior statute, but fell within time limits of new, four-year statute of limitations).

In 2002, to comport with the change in the medical-malpractice limitations period, the legislature also amended the wrongful-death statute, Minn.Stat. § 573.02. The amended statute requires that an action to recover damages for a death caused by alleged professional negligence of a physician or hospital “shall be commenced within three years of the date of death, but in no event shall be commenced beyond the time set forth in section 541.076.” Minn. Stat. § 573.02 (2002). This section also operated retroactively to August 1, 1999. 2002 Minn. Laws ch. 403, § 6. Therefore, the statute of limitations for claims of wrongful death due to medical malpractice in effect at the time Broek initiated this action in March 2002 set a time limit of four years from the date the cause of action accrued, or three years from the date of death.

Consequently, if we conclude that the cause of action accrued in February 1993, when Uetz ended his treatment with Ran-heim, the current four-year statute of limitations precludes Broek from bringing her claim. If we conclude, however, that the cause of action did not accrue until Uetz suffered cardiac arrest in September 2000, Broek’s claim is not barred and may proceed.

“The general rule with respect to actions for negligence is that the cause of action accrues * * * when the negligent act or omission causes injury on which the injured party could maintain an action.” Wittmer v. Ruegemer, 419 N.W.2d 493, 496 (Minn.1988). Thus an action does not accrue if it is subject to dismissal for failure to state a claim. Id.; Bonhiver v. Graff, 311 Minn. 111, 117, 248 N.W.2d 291, 296 (1976); see also Minn. R. Civ. P. 12.02. In tort cases, “causes of action accrue at the time of injury, which usually coincides with the act causing the injury.” David W. Feeder II, When Your Doctor Says, “You Have Nothing to Worry About, ” Don’t Be So Sure: The Effect of Fabio v. Bellomo on Medical Malpractice Actions in Minnesota, 78 Minn. L.Rev. 943, 952 (1994). To balance concerns about potentially harsh effects of limitations statutes, courts and legislatures have developed tolling doctrines that delay the accrual of the statutory period past the normal accrual date. Id. at 951.

Minnesota courts have adopted two equitable tolling measures for medical-malpractice actions: fraudulent concealment by the physician, which is not at issue in this case, and the termination-of-treatment rule. The termination-of-treatment rule, which establishes the accrual date for most medical-malpractice causes of action, delays accrual until treatment for the particular condition is terminated. Johnson v. Winthrop Labs., 291 Minn. 145, 149, 190 N.W.2d 77, 80 (1971). This rule is predicated on the rationale that “the patient must repose reliance upon his physician in the completion of the course of curative treatment, a relationship of trust which inhibits the patient’s ability to discover acts of omission or commission constituting malpractice.” Swang v. Hauser, 288 Minn. 306, 309, 180 N.W.2d 187, 189-90 (1970); see also Schmit v. Esser, 183 Minn. 354, 358-59, 236 N.W. 622, 625 (1931) (noting that treatment has not ceased until physician ceases to attend patient or there is nothing more to be done as to particular injury physician was employed to treat). This rule extends the accrual of a cause of action beyond the date when the injury occurred.

Minnesota courts have carved out an exception to the termination-of-treatment rule for cases when the alleged malpractice consists of a single act of negligence that is complete at a precise time, when the act cannot be cured or relieved by a continued course of treatment, and when the plaintiff is aware of facts on which the claim is based. See, e.g., Murray v. Fox, 300 Minn. 373, 220 N.W.2d 356 (1974) (applying “single act” exception to cause of action arising from alleged negligent surgical procedure). In these cases, “[ajlleged 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).

The accrual of a cause of action under either the termination-of-treatment rule or the single-act exception presupposes the existence of an injury that may be attributable to the defendant’s negligence — in other words, the element of damage must first exist before an action may be brought. On the admittedly unusual facts of this case, we conclude that the uncontested record establishes that the critical element of injury was missing until September 2000, when Uetz suffered the fatal cardiac arrest. The record simply contains no evidence that Uetz suffered any compensable injury before that time that could be attributable to Ranheim’s alleged negligence. Uetz suffered from a congenital heart condition for which he was seen by Ranheim, who assured him that he could continue a vigorous exercise program. Accordingly, Uetz continued to exercise without further symptoms, and, seven years later, suffered cardiac arrest while playing raequetball.

As it currently stands, the record contains no medical evidence that Uetz’s preexisting heart condition changed or progressed during the seven-year time period after he consulted with Ranheim. There is no evidence that his rigorous exercise or failure to return to Park Nicol-let for periodic checkups caused his condition to deteriorate. The record before us indicates his condition was the same from the date he was seen by Dr. Ranheim until the time of his heart failure. In this respect, this case differs from failure to diagnose or inform, in which the plaintiffs illness or injury progressed during a time period after the alleged negligence occurred, and thus triggered the running of the statute of limitations. See, e.g., Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993) (progression of breast cancer subsequent to alleged misdiagnosis); D’Amaro v. Joyce, 297 F.3d 768 (8th Cir.2002) (pulmonary artery abnormality developed into debilitating and life-threatening condition following failure to inform of X-ray results). By all accounts, Uetz’s heart defect, most probably a genetic condition, had existed from his birth and produced the same chances of causing injury or death after the alleged negligence as at any time previously in his life. At best, this preexisting condition created an inherent propensity toward injury. But the law does not compensate the mere possibility of harm. See Reliance Ins. Co. v. Arneson, 322 N.W.2d 604, 607 (Minn.1982) (concluding that a threat of future harm, not yet realized, will not satisfy damage requirement in negligence action).

Ranheim argues that if we allow this action to proceed, we would in effect be adopting a “discovery rule,” which would toll the medical-malpractice statute of limitations until the plaintiff became aware of the injury for which he seeks compensation. The Minnesota Supreme Court has expressly declined to adopt such a rule, Johnson, 291 Minn. at 149, 190 N.W.2d at 80, and it is not within our purview to alter that determination. St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn.App.1989) (noting that only in absence of statutory or judicial precedents will court of appeals make new law), review denied (Minn. Mar. 29, 1989). But our decision in this case rests not on Uetz’s failure to discover a medical injury that may have been attributable to Ranheim’s negligence, but rather on the proposition that no injury existed until Uetz suffered cardiac arrest in September 2000. Thus, our analysis reflects an objective standard — ascertainable evidence of injury — rather than a subjective standard — the plaintiffs personal knowledge of such an injury. See Dalton v. Dow Chem. Co., 280 Minn. 147, 154, 158 N.W.2d 580, 585 (1968) (rejecting “subjective determination” of accrual of cause of action).

DECISION

Under the narrow facts of this case, because no evidence establishes that Uetz suffered compensable injury attributable to Ranheim’s alleged negligence before September 2000, we conclude that Broek’s claim was timely brought within the applicable statutes of limitation, Minn. Stats. §§ 573.02 and 541.076. Accordingly, we reverse the district court’s grant of summary judgment and remand for trial on the merits.

Reversed and remanded.


author: G. BARRY ANDERSON, Judge. WILLIS, Judge

text:
    Kimberly A. MOLLOY, et al., Respondents, v. Diane M. MEIER, M.D., et al., Appellants (C9-02-1821), Respondents (C2-02-1837), Reno E. Backus, M.D., et al., Defendants (C9-02-1821), Appellants (C2-02-1837), North Memorial Health Care d/b/a North Memorial Medical Center, Defendant (C2-02-1837).
    Nos. C9-02-1821, C2-02-1837.
    Court of Appeals of Minnesota.
    May 6, 2003.

      Terry L. Wade, Wendy J. Zeller, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, MN, for respondents Kimberly Mol-loy, et al.
    Katherine A. McBride, Barbara A. Zu-rek, William M. Hart, Meagher & Geer, P.L.L.P., Minneapolis, MN, for appellants and respondents Diane Meier, et al.
    David D. As op, Laura L. Myslis, Matthew P. Kostolnik, Gislason & Hunter LLP, Minnetonka, MN, for appellants Reno Backus, et al.
    Considered and decided by WILLIS, Presiding Judge, SCHUMACHER, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellants challenge the district court’s denial of their summary-judgment motions and the district court’s decisions regarding three certified questions. We affirm the district court’s conclusions on all three issues. First, a physician-patient relationship existed here between appellants and respondent Kimberly Molloy because the physicians had a duty to inform Molloy of the existence of a genetic condition. Second, Kimberly Molloy’s cause of action accrued at the point of conception of M.M., and thus, it is not time-barred under Minnesota law. Finally, Minnesota law does not bar Kimberly Molloy’s cause of action because it is not a suit alleging that had appellants’ negligence not occurred, an abortion would have been sought.

FACTS

This is a medical-malpractice action involving a child born to respondents Kimberly and Glenn Molloy. Their child, M.M., was born in 1998 with fragile X syndrome, a hereditary condition that causes a range of mental impairments, from mild learning disabilities to severe mental retardation. Soon after discovering that M.M. had fragile X syndrome, respondents learned that Kimberly Mol-loy’s daughter from a prior marriage, S.F., also had fragile X and that Kimberly Mol-loy is a carrier of fragile X.

S.F. was born March 9,1988, to Kimberly Molloy and her former husband Robert Flomer. Molloy and Flomer also had two other daughters. Molloy and Flomer divorced when S.F. was approximately one- and-a-half years old. Flomer was awarded custody of all three children. Kimberly subsequently married respondent Glenn Molloy and had two children, K.M. and M.M., who were born in 1993 and 1998, respectively.

On May 18, 1992, Kimberly Molloy consulted with Dr. Diane Meier to determine the source of S.F.’s developmental abnormalities. Molloy told Dr. Meier that Mol-loy had a brother with mental retardation, and she expressed a desire to determine whether S.F.’s problems might be genetic. In the notes for that exam, Dr. Meier wrote “? Chromosomes plus Fragile X” and ordered chromosomal testing of S.F. Dr. Meier advised Molloy that if S.F.’s tests were abnormal, Molloy would need to return for testing. Molloy assumed that if testing were required, Dr. Meier would order it. Dr. Meier also referred S.F. to Dr. Reno Backus at the Minneapolis Clinic of Neurology.

On June 23, 1992, Molloy, along with Robert Flomer and his new spouse, Ran-dine Flomer, brought S.F. to Dr. Backus and told him about Molloy’s brother. Dr. Backus diagnosed S.F. as developmentally delayed with autistic tendencies of unknown etiology. Molloy told Dr. Backus that she had remarried and asked him about the risk that she might give birth to another child with problems like those suffered by S.F. Dr. Backus told Molloy that the chances she would have another child like S.F. were extremely remote, especially with a father other than Robert Flomer. Dr. Backus told Molloy that S.F.’s problems were not genetic but were “just one of those things that happen.” S.F. had only this one appointment with Dr. Backus and neither the Flomers nor Molloy saw Dr. Backus again. Dr. Backus testified that he was not involved with S.F.’s care but that his role was to evaluate her from a neurological point of view and that he was merely acting as an adviser to Dr. Meier, the referring physician.

Approximately one month later, Randine Flomer brought S.F. to North Memorial Medical Center for the chromosomal testing that Dr. Meier ordered. Although Dr. Meier admitted that it was her intention to order fragile X testing, for unknown reasons, this test was not performed. The tests that were done did not reveal any chromosomal abnormalities, and Dr. Meier related those test results to the Flomers over the phone. The results were also relayed to Molloy, who believed that the normal test results included fragile X testing.

On December 14, 1992, Dr. Meier saw the Flomers for a consultation with S.F. In her notes about this visit, Dr. Meier wrote, “check fragile X (if done 6/92).” Dr. Meier did not determine at this time whether S.F. had been tested for fragile X. S.F. treated at Oakdale Pediatrics with Dr. Meier until December 19, 1995, when her father switched her to a different primary-care physician, Dr. Marilyn Campbell, at Columbia Park Medical Clinic.

Dr. Campbell referred S.F. to Dr. Kathryn Green, a pediatric neurologist at the Minneapolis Clinic of Neurology. Dr. Green met with the Flomers, examined S.F., and reviewed S.F.’s diagnostic history, including the chromosomal testing ordered by Dr. Meier. Dr. Green also reviewed S.F.’s family history and noted a maternal half-uncle with mental retardation. Dr. Green never met with or spoke to Kimberly Molloy. Dr. Green did not order or" recommend fragile X testing. Dr. Green testified that she was not asked by Dr. Campbell to make a diagnosis of S.F., but rather to give an opinion of how to manage S.F.’s hyperactivity, and therefore prescribed Clonidine to replace the Ritalin that S.F. had been taking. The Flomers never returned to visit Dr. Green.

Kimberly Molloy became pregnant in September 1997, and, on June 30, 1998, she gave birth to M.M. After M.M. began showing signs of developmental delay, but before M.M. or S.F. were diagnosed with fragile X, Molloy underwent surgical sterilization because of concerns that she was a carrier of genetic defects. In June 2000, M.M. was diagnosed as suffering from fragile X syndrome; subsequent testing established that S.F. also has fragile X syndrome. Kimberly Molloy was tested, and it was determined that she is a carrier of fragile X.

Respondents initiated 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 read and interpret the laboratory results from the test that S.F. underwent, negligently reporting to S.F.’s parents that S.F. had been tested for fragile X and that she did not have that condition, and failing to counsel respondents regarding their risks of passing an inheritable genetic abnormality to future children. Respondents allege that had they known of S.F.’s condition, they would not have conceived M.M. and that, as a result of appellants’ negligence, they have incurred and will continue to incur medical, educational, and other expenses relating to M.M.

Appellants brought motions for summary judgment, subsequently denied by the district court. Appellants then brought a motion to certify the issues presented by their summary-judgment motions as important and doubtful for the purpose of bringing an appeal pursuant to Minn. R. Civ.App. P. 103.03®. The district court granted appellants’ motion on September 30, 2002, and certified four issues. By order, this court consolidated the two appeals on October 25, 2002. In a separate order, this court dismissed certified question number four pertaining to damages because the district court did not rule on this issue and it did not appear that the issue was relevant to appellants’ motion for summary judgment.

ISSUES

I. Does a physician who fails to test for and diagnose a genetic disorder in a child owe a legal duty to that child’s parents who have a subsequent child that also has that disorder?
II. When does a cause of action accrue in a medical malpractice claim alleging failure to test for and diagnose a genetic disorder in a child, when a subsequent child was born with the same disorder?
III. Does MinmStat. § 145.424 (2002) prohibit parents from bringing an action alleging they would not have conceived the subsequent child described in question II?

ANALYSIS

When certified questions arise from a denial of summary judgment, the summary judgment standard applies; therefore, we review the record to resolve “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). On appeal, we “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted).

The main issues here are whether appellants had a legal duty to respondents and whether the district court erred in its interpretation of various statutes. Whether a legal duty exists is generally a question of law for the court to determine. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985). In addition, statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

I

The first question in a negligence claim based on medical malpractice is whether a physician-patient relationship existed. Peterson v. St. Cloud Hosp., 460 N.W.2d 635, 638 (Minn.App.1990). The existence of such a relationship is a prerequisite for finding that the defendant doctor owed a duty to the plaintiff. McElwain v. Van Beek, 447 N.W.2d 442, 445 (Minn.App.1989), review denied (Minn. Dec. 20, 1989).

Here there is no dispute that appellants had a duty to S.F., their patient. At issue is whether the doctors also had a duty to S.F. and M.M.’s mother, Kimberly Molloy, and her husband, Glenn Molloy, M.M.’s father. The district court concluded that a duty might extend to Kimberly Molloy because a “doctor performing genetic tests on a minor child owes a duty to the biological parents of the child.”

A duty to a third party who is not a patient of the physician has been recognized in only a few Minnesota cases. In “duty-to-warn” cases, a duty has been recognized where the physician’s patient poses a danger of harm to an identifiable third person. Id. The Minnesota Supreme Court has limited a physician’s duty to warn to circumstances where the patient makes specific threats against identifiable third parties. Id.

Physicians have also been found to have a “duty to control” their patients when they pose a threat to third parties. Id. The duty to control a patient exists only when the physician has the ability to control the patient and the harm is foreseeable. Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn.1984).

The facts here are not comparable with either the duty-to-warn or the duty-to-control cases. S.F.’s treatment did not pose a danger to third persons. Her condition did not create a duty on the part of appellants to control S.F. or a duty to warn others that they were in imminent danger.

In a third category of cases, a duty has been found between a physician and a minor patient’s parents. Skillings v. Allen, 143 Minn. 323, 173 N.W. 663 (1919). In Skillings, a physician advised the parents of a minor child that they could safely visit their child, who was in the hospital with scarlet fever. Id. at 324, 173 N.W. at 663. After both parents contracted scarlet fever, the parents asserted a cause of action against the physician. Id. The supreme court held that the physician was liable for negligently advising the parents:

To advise them that they ran no risk in visiting her at the hospital or in taking her into their home necessarily exposed them to danger if they acted on the advice, and defendant was bound to know that they would be likely to follow his advice.

Id. at 326, 173 N.W. at 664.

Appellants argue that Skillings is distinguishable from the present facts because no communicable disease is present. The supreme court has stated that the decision in Skillings was based upon the contractual relationship between the parents and the physician, as well as the special treatment accorded infectious diseases. McElwain, 447 N.W.2d at 446.

Although no communicable disease is present here, Skillings nonetheless guides our analysis. As in Skillings, though there is evidence in the record that Kimberly Molloy received and relied upon direct advice from appellants. Molloy told Dr. Meier about Molloy’s brother, who suffers from mental retardation, and asked Dr. Meier to perform tests to determine whether S.F. had inherited any genetic abnormality from her. Dr. Meier specifically made a notation to test for fragile X and told Molloy that if an abnormality was detected, then Molloy would need to be tested also.

While no Minnesota case has addressed whether physicians owe a legal duty to parents in these circumstances, other states have found a duty to exist. Further, negligence law establishes the scope of a defendant’s duty based on the reasonable foreseeability of the consequences of an individual’s actions. See Tomfohr v. Mayo Found., 460 N.W.2d 121, 124-25 (Minn.1990) (a custodian of another person may be liable for consequences of harm to that person inflicted by a third person when that harm is reasonably foreseeable); Oslin v. State, 543 N.W.2d 408, 415 (Minn.App.1996) (holding that if an event is reasonably foreseeable, duty to act may exist as a matter of law). The damage here resulting from the alleged negligent actions was foreseeable. 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 fragüe X. If an additional chüd were born with this genetic abnormality, it is also foreseeable that respondents would sustain certain damages in the form of medical or other expenses. Finally, appehants could reasonably foresee that a parent of chüdbearing years, such as Kimberly Moüoy, might, in the absence of knowledge that S.F. suffered from a genetically transferable condition, conceive another child.

The genetic testing Dr. Meier and Mol-loy discussed was not ordered to benefit 5.F. Molloy was asking Dr. Meier to determine whether she was a carrier for a genetic abnormality suffered by her chüd. Because fragüe X is neither curable nor treatable, the testing was undertaken for the benefit of others, here specifically Kimberly Molloy. The testing is important because genetic-disease-carrier status and the likelihood of future genetic defects are important factors in family-planning decisions. Dr. Meier also admitted in her deposition that when a genetic abnormality is discovered in a chüd, the biological parents should always be notified. This evidence indicates that Dr. Meier appreciated that a duty exists to advise biological parents of genetic test results and that she assumed a duty to appropriately test S.F. for genetic abnormalities and to report back to Molloy if the tests indicated that Molloy is a carrier. Given that Dr. Meier undertook to advise Molloy on these genetic issues, we conclude that Dr. Meier had a duty to advise Molloy pursuant to the appropriate standard of care.

Simüarly, Molloy speeificafiy asked Dr. Backus about the risk that she might give birth to another chüd with S.F.’s problems. Dr. Backus advised her that the risk was extremely remote, especially with a father other than Robert Flomer. We recognize that at the time that he saw Moüoy, Dr. Backus erroneously befieved that Dr. Meier’s testing had included frag-üe X testing or that she was planning to do it. Respondents allege, however, that Dr. Backus, after entering into a relationship in which a duty existed to Molloy to render correct and appropriate medical advice, should have known that Dr. Meier had failed to properly complete the chromosomal testing. Therefore, respondents allege, Dr. Backus was negligent in assuming that the fragile X test had been completed. Although for purposes of this appeal we need not reach the merits of all of respondents’ allegations, we conclude that the record supports a finding that Dr. Backus owed Molloy a duty to render medical advice pursuant to the appropriate standard of care when he advised her regarding the risks of conceiving another child with the same problems as S.F.

Dr. Green argues that a physician-patient relationship cannot exist because Green never met respondents personally. But lack of direct contact “in itself does not preclude a physician-patient relationship.” Peterson, 460 N.W.2d 635, 638 (holding that a consensual physician-patient relationship may exist even where others have contracted with the physician for the patient’s benefit). In Peterson, the patient’s treating doctor, Dr. Weitz, sent sample cells of Peterson’s tumor to Dr. Murray to examine. Id. at 638. Concluding that Dr. Weitz contracted with Dr. Murray with the express or implied consent of Peterson, this court held that Peterson could sustain a claim against Dr. Murray, even though the two had never met. Id. at 638. Peterson and Dr. Murray were thus in a consensual physician-patient relationship because Dr. Murray rendered health-care services on behalf of Peterson and for Peterson’s benefit. Id.

As in Peterson, S.F.’s treating physician, Dr. Campbell, retained Dr. Green to give an opinion as to managing S.F.’s hyperactivity. Dr. Green’s treatment, and subsequent failure to order fragile X testing, were thus rendered for the benefit of S.F., and, under Peterson, a physician-patient relationship existed between Dr. Green and S.F.

Dr. Green, like Drs. Meier and Backus, conceded that physicians are expected to notify family members when a genetic abnormality is detected so that those family members may obtain testing too, if desired. As in Peterson, a consensual relationship existed between Dr. Green and Molloy because both knew that health-care services were being rendered on behalf of S.F. and that there was an expectation that information would be forwarded to Molloy as one of S.F.’s biological parents.

Appellants also argue that if a duty is found here, a physician might be hable for seeking out and informing distant relatives and unknown persons to notify them of the patient’s genetic abnormality. The duty we find here is not this complex. If the patient is an adult, the duty to diagnose a genetic disease ends with the communication to the patient. With a patient such as S.F., who is a minor, the physician must notify a biological parent. Thus, appellants’ duty would have been satisfied had they rendered appropriate medical services to S.F. and correctly communicated the resulting information to a biological parent of S.F. This they did not do.

This duty does not extend, however, to Molloy’s husband, Glenn Molloy. He is not a biological parent of S.F. and is not entitled to receive medical information regarding S.F.’s medical history, genetic or otherwise. Furthermore, he was not present at any of the appointments with appellant doctors. On this record, no physician-patient relationship exists between Glenn Molloy and appellants, and there was no duty on the part of appellants to convey medical information regarding S.F. to Glenn Molloy.

II

The legislature has established a four-year limitations period for medical-malpractice claims. Minn.Stat. § 541.076(b) (2002). The statute was made effective August 1, 1999, and applies to “actions commenced on or after that date.” Act of Mar. 26, 1999, ch. 23, §§ 1-3, 1999 Minn. Laws 128, 128, codified at Minn.Stat. § 541.076. Therefore the statute acts retroactively to revive claims that had expired under the previous two-year statute and before the effective date of the new statute. Minn.Stat. § 541.076(b); see Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 419-20 (Minn.2002) (holding that the new statute of limitations “applies to all claims that are within the four-year limitations period and commenced on or after the effective date of the new statute”). Because respondents commenced this suit in August 2001, the four-year statute of limitations applies and the material question is when the cause of action accrued and the statute of limitations began to run.

Appellants argue that the district court erred by concluding that the statute of limitations began to run at the conception of M.M. and not at the termination of treatment of S.F. by each individual doctor.

Generally, in tort cases the cause of action accrues at the time of injury, which usually coincides with the act causing injury. Dalton v. Dow Chem. Co., 280 Minn. 147, 151, 158 N.W.2d 580, 583 (1968); Peterson, 460 N.W.2d at 638. In medical-malpractice cases, however, the manifestation of the injury can come years after the alleged negligent treatment or misdiagnosis. See Fabio, 504 N.W.2d at 762 (failure to diagnose breast cancer not discovered until more than two years after physician told plaintiff “not to worry”). Some jurisdictions have adopted a “discovery rule” tolling the running of the statute of limitations until the patient discovers or should have discovered the injury. See David W. Feeder, II, When Your Doctor Says, “You Have Nothing to Worry About, ” Don’t Be So Sure: The Effect of Fabio v. Bellomo on Medical Malpractice Actions in Minnesota, 78 Minn. L.Rev. 943, 954 n. 48 (1994) (listing a “vast majority of states” that recognize the discovery rule to some extent).

Minnesota courts have explicitly rejected this approach. Johnson v. Winthrop Labs. Div. of Sterling Drug, Inc., 291 Minn. 145, 149, 190 N.W.2d 77, 81 (1971). Thus, the statute of limitations in Minnesota “for medical malpractice may bar a cause of action before the injured party discovers they are suffering damages caused by negligent medical conduct.” Zagaros v. Erickson, 558 N.W.2d 516, 521 (Minn.App.1997), review denied (Minn. Apr. 17, 1997). The legislature has chosen not to enact a discovery rule for medical-malpractice cases.

There are two exceptions that suspend, or toll, the running of the statute of limitations: first, “fraudulent concealment” by a physician tolls the running of the statute of limitations. Schmucking v. Mayo, 183 Minn. 37, 40-41, 235 N.W. 633, 634 (1931). Fraudulent concealment has not been asserted here. In the exception relevant here, courts have adopted the termination-of-treatment rule, which states that a cause of action generally accrues when treatment for a particular condition ceases. Fabio, 504 N.W.2d at 762. The purpose of the termination-of-treatment rule is to encourage the patient’s reliance on the physician during the course of treatment because the relationship can potentially preclude the patient from discovering acts or omissions that could constitute malpractice. Zagaros, 558 N.W.2d at 520 (citation omitted).

Appellants argue the termination-of-treatment rule should be applied because the facts here are similar to misdiagnosis cases. But these cases deal almost exclusively with litigation by the patient against his or her doctor where the misdiagnosis causes the plaintiff damage. For example, both Fabio and Zagaros dealt with conditions, cancer and BPD, that grow progressively worse without treatment. See, e.g., Fabio, 504 N.W.2d at 762 (failure to diagnose and treat breast cancer); Zagaros, 558 N.W.2d at 521-22 (misdiagnosis of borderline personality disorder or “BPD”). The negligence alleged here is unique in that the failure to order fragile X testing did not make S.F’s condition progressively worse. Because the condition is neither curable nor treatable, the medical error did not directly damage the patient. Indeed, the negligence arguably never harmed S.F. at all. Thus, had respondents not conceived another child, the alleged negligence could not sustain a cause of action because respondents would have suffered no damage.

The conclusion that respondents did not have a viable cause of action until M.M.’s conception is also consistent with the general rule that a cause of action does not accrue until damage has resulted. Peterson, 460 N.W.2d at 638. “Alleged negligence coupled with the alleged resulting damage is the gravamen in deciding the date when the cause of action accrues.” Id. (citing Offerdahl v. Univ. of Minn. Hosp. & Clinics, 426 N.W.2d 425, 429 (Minn.1988)). In Peterson, this court held that appellants did not suffer damage until Peterson received chemotherapy and radiation treatments due to a misdiagnosis of a lung lesion. Id. The court rejected the assertion by respondents that appellants were harmed at the time of the misdiagnosis because, under Minnesota law, appellants could not have brought a cause of action at that time. See id. at 639 (quoting Langeland v. Farmers State Bank of Trimont, 319 N.W.2d 26, 32 (Minn.1982)) (noting that appellants would not be able to assert a cause of action for the negligent infliction of emotional distress absent either physical injury or physical danger). Furthermore, the court noted that holding that appellants’ cause of action accrued when Peterson began treatment was consistent with Minnesota’s refusal to adopt the discovery rule. Id. Had Peterson never “proceeded with radiation and chemotherapy treatment, it is doubtful whether a cause of action on [the doctor’s] alleged negligence would ever have accrued.” Id. But because the occurrence of the damage, rather than discovery of it, determines when a medical-malpractice action accrues, the statute of limitations in the Peterson action commenced with Peterson’s first treatment. Id.

We find the present facts similar to Peterson. Respondents here allege that, had proper fragile X testing been done on S.F. and had the test results been accurately relayed, respondents would have known Kimberly Molloy was a carrier of the fragile X abnormality and would have undertaken steps to prevent future conception.

The analysis used by the supreme court in Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175 (Minn.1977), is instructive here. The claim in Sherlock arose out of a failed vasectomy, and the supreme court concluded that the parents were not entitled to recover damages incident to pregnancy and birth until conception occurs. 260 N.W.2d at 176. It is difficult to articulate a principled distinction between Sherlock and our present facts. In both cases, absent conception, no claim exists. In both cases, damages originated with conception. Here, it is clear that no injury was sustained until M.M. was conceived.

Counsel for Dr. Meier, in a well-presented and thorough argument, claims that the effect of the district court holding, and our answer to this certified question, is to open the door to genetic-diagnosis claims without limit. And as the concurring opinion cogently argues, theoretically, a claim could be made years, or decades, after the failed diagnosis. Although the extent and number of these claims is rank speculation, as a matter of public policy, this argument has substantial merit. But it is the province of the legislature, not this court, to enact a statute of repose or to take other action to limit the risk to physicians, if that is the desired outcome.

Because we hold that the cause of action did not accrue until the date of conception, approximately September 1997, we need not rely on the application of the termination-of-treatment rule or the single-act exception to that rule. Because the four-year statute of limitations had not run when respondents initiated the present suit in August 2001, it is not time-barred.

Ill

The third certified question involves whether Minnesota law prohibits Kimberly Molloy’s cause of action. The district court held that respondents asserted a permissible wrongful-conception cause of action and that Minn.Stat. § 145.424, subds. 1 and 2 (2002), were inapplicable. The interpretation and construction of a statute is a question of law that this court reviews de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

Minnesota law prohibits certain causes of action in Minn.Stat. § 145.424:

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.

Minn.Stat. § 145.424, subds. 1, 2.

Subdivision 1 is not applicable here. “Wrongful life” actions are brought by a child to recover damages for wrongfully being born. Sherlock, 260 N.W.2d at 172 n. 3. Because M.M. is not a party to this action, this is not a prohibited wrongful-life suit.

Appellants claim that respondents’ suit is prohibited under subdivision 2 because it is for “wrongful birth.” Respondents, however, characterize their cause of action as one for wrongful conception and therefore not prohibited by Minn.Stat. § 145.424.

The leading case in determining the line separating prohibited “wrongful-birth” suits and permissible “wrongful-conception” cases is Sherlock. There, Sherlock underwent a vasectomy following the birth of the Sherloeks’ seventh child. Id. at 171. The physician advised the Sherloeks to refrain from sexual relations or to take additional contraceptive measures until postoperative testing determined that Mr. Sherlock’s semen was free of sperm. Id. After testing, the physician informed Sherlock that the test was “negative” even though the test revealed the presence of live sperm cells. Id. When Mrs. Sherlock subsequently became pregnant, the Sher-locks sued, claiming that the unplanned birth of their eighth child was a direct result of the doctor’s negligent care. Id.

Permitting the Sherloeks’ cause of action, the supreme court stated:

We are not persuaded that public policy considerations can properly be used to deny recovery to parents of an unplanned, healthy child of all damages proximately caused by a negligently performed sterilization operation.

Id. at 174. The court went on to hold that such an action is properly characterized as wrongful conception and not wrongful birth because it is at conception that damage occurred. Sherlock, 260 N.W.2d at 174-75. The wrongful-conception suit, the court concluded, is exclusively reserved to parents, because it is they — and not the unplanned child — who have sustained the physical and financial injury caused by the physician’s negligence. Id. at 175.

As in Sherlock, the plain language of Minn.Stat. § 145.424, subd. 2, does not prohibit respondents’ cause of action. The legislature has seen fit to prohibit suits that allege that but for the negligent conduct, a child would have been aborted. Because respondents do not allege that appellants’ negligence prevented them from obtaining an abortion, subdivision 2 does not prohibit this suit.

Appellants rely on Justice Simonett’s concurrence in Hickman v. Group Health Plan, Inc., 396 N.W.2d 10 (Minn.1986), to argue respondents’ cause of action is a prohibited wrongful-birth claim. Drawing the distinction between permissible wrongful-conception cases and prohibited wrongful-birth claims, Justice Simonett wrote

[i]n both cases, the plaintiff would not have had the child but for the negligence of the doctor, but the 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.

Hickman, 396 N.W.2d at 17 (Simonett J., concurring). Appellants argue that because respondents are asserting that M.M. was unwanted because of genetic defects, and not unplanned, they are alleging wrongful-birth.

But again, respondents do not allege that an abortion was sought or would have been sought as a result of M.M.’s fragile X condition — the crux of what Minn.Stat. § 145.424, subd. 2, prohibits. Instead, they claim that they wanted more children and that Molloy consulted with appellants, in part, to determine the likelihood that future children would be born with genetically transmitted disabilities.

This is a wrongful-conception claim because it alleges that conception would have been avoided had negligence not occurred. Because the plain language of Minn.Stat. § 145.424 does not bar respondents’ action, it is permissible as a wrongful-conception cause of action.

DECISION

The district court properly held that respondents owed Kimberly Molloy a duty of care to advise her pursuant to the appropriate standard of care regarding S.F.’s genetic condition. No duty extended to Glenn Molloy because he is not a biological parent of S.F. The district court correctly concluded that Kimberly Molloy’s cause of action accrued at the conception of M.M. because it was then that she sustained injury from appellants’ alleged negligence. Finally, Kimberly Molloy’s suit is not prohibited because it does not allege either a wrongful-birth or wrongful-life cause of action. Because she is not claiming that an abortion would have been performed had appellants’ negligence not occurred, her suit is permissible under Minnesota law.

Affirmed.

WILLIS, Judge

(Concurring specially).

Because I believe that the current state of the law in Minnesota leads inexorably to the result reached by the majority, I concur in that result. But I write separately because I also believe that the majority understates the policy implications of this opinion.

The majority notes, quite rightly, that under circumstances like those presented here, a malpractice claim could in theory be brought decades after a failed diagnosis. Many genetic diseases and conditions “skip” generations. Therefore, the effective limitation on a claim based on misdiagnosis of a genetic condition becomes very unclear indeed. What is clear, however, is that short-term “tail” liability-insurance coverage after an event such as retirement will no longer be sufficient to protect the interests of a physician who was in any way involved in genetic testing.

The majority suggests that “the extent and number” of decades-old claims based on failed genetic diagnoses “is rank speculation.” I suggest that the number of such claims that might be made is only a part of the implications of this opinion. I think that the fact that any such claim could be made will cause medical professionals, acting in their rational self-interests, to avoid to the greatest degree possible medical practice likely to involve genetic testing. That clearly is not in the public interest.

This appears to be yet another area in which technology is ahead of the law. The majority also observes that “it is the province of the legislature, not this court, to enact a statute of repose or to take other action to limit the risk to physicians, if that is the desired outcome.” I believe that is an outcome very much to be desired. If the legislature does not act to somehow limit Lability in cases like the one here, it is difficult to see where the next generation of geneticists willing to practice in Minnesota will come from.

      . A person with fragile X syndrome has a mutation of the FMR1 (fragile X mental retardation 1) gene in the DNA that makes up the X chromosome.

      . Molloy recalls Backus stating that the chances of a condition similar to that suffered by S.F. occurring again were no higher than one in several hundred thousand and possibly even more remote.

      . Once a plaintiff can show that a duty exists, a prima facie case of medical malpractice consists of showing: (1) the standard of care applicable, (2) that the physician departed from that standard, and (3) that such departure caused the plaintiff's injuries. McElwain v. Van Beek, 447 N.W.2d 442, 445 (Minn.App.1989), review denied (Minn. Dec. 20, 1989).

      . This line of cases follows the well known California decision, Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), where a psychiatric patient had confided to his therapist his intention to kill Tarasoff. The psychiatrist was found to have a duty to warn of the dangerousness of the patient. Id. at 343.

      . See, e.g., Lininger v. Eisenbaum, 764 P.2d 1202 (Colo.1988) (claim that doctors breached duty to parents in failing to diagnose congenital amaurosis, a hereditary form of blindness, in first child held viable even though parents not patients); Pate v. Threlkel, 661 So.2d 278 (Fla.1995) (permitting a child to sue parent’s physician for failing to warn child that parent had medullary thyroid carcinoma, a genetically transferable condition); Siemieniec v. Lutheran Gen. Hosp., 117 Ill.2d 230, 111 Ill.Dec. 302, 512 N.E.2d 691 (1987) (allowing parents of child born with hemophilia to bring cause of action against hospital for expenses of raising child); Nelson v. Kru-sen, 678 S.W.2d 918 (Tex.1984) (erroneously interpreting a woman’s carrier status test for Duchenne muscular dystrophy as negative); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982) (allowing a cause of action when a doctor erroneously informed a father that he was not a carrier of Tay-Sachs). See also, Jeffrey W. Burnett, A Physician’s Duty to Warn a Patient’s Relatives of a Patient’s Genetically Inherítáble Disease, 36 Hous. L.Rev. 559, 569-575 (1999); Lori B. Andrews, Torts and the Double Helix: Malpractice Liability for Failure to Warn of Genetic Risks, 29 Hous. L.Rev. 149, 153-155, n. 17, 18 (1992).

      . In Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981), the New Jersey Supreme Court found a physician-patient relationship in circumstances very similar to these facts. The defendant doctors in that case failed to diagnose genetically transmitted cystic fibrosis in a child. Id. at 836. Before learning that the child had cystic fibrosis, Schroeder became pregnant, and, one month after learning of the first child’s diagnosis, Schroeder gave birth to a second child who also had cystic fibrosis. Id. The New Jersey Supreme Court held that the defendants’ duty "may extend beyond the interests of a patient to members of the immediate family * * * who may be adversely affected by a breach of that duty.” Id. at 839. The court stated that the defendants should have foreseen that parents of childbearing years, like the Schroeders, would, in the absence of the cystic-fibrosis diagnosis, conceive another child. Id. While we recognize that Schroeder is not prece-dential, we find its treatment of the foreseeability of negligent care in the area of genetically transferable diseases persuasive.

      . It is worth noting that after M.M. was diagnosed as suffering from fragile X, the attending physician recommended genetic testing for other family members. When S.F. also tested positive for fragile X, the pediatric clinic at Hennepin Faculty Associates provided Molloy with genetic counseling for her and her other children and offered testing and counseling to all family members.

      . In an exception to the termination-of-treatment rule, the single-act exception holds that the cause of action accrues "at the time the plaintiff sustains damage from that act, absent fraudulent concealment,” Ciardelli v. Rindal, 582 N.W.2d 910, 912 (Minn.1998), or "at the time of the negligent act.” Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn.App.2000). This “single-act exception” is not limited only to conduct that starts and stops in a moment but also is applicable to a course of malpractice that terminates at a specific point in time. Haberle v. Buchwald, 480 N.W.2d 351, 355-56 (Minn.App. 1992), review denied (Minn. Aug. 4, 1992).

      . Appellants assert that treatment ended with Dr. Meier in December 1995, with Dr. Backus on June 23, 1992, and with Dr. Green on April 30, 1996. It is undisputed that if the termination-of-treatment rule applies, respondents’ action is barred because the litigation was not brought within four years after the termination of treatment.

      . See, e.g., Brian R. Gin, Genetic Discrimination: Huntington’s Disease and the Americans with Disabilities Act, 97 Colum. L.Rev. 1406, 1414 n. 45 (1997) (citing Anthony J.F. Grif-fiths et ah, An Introduction to Genetic Analysis 27-28 (6th ed.1996)); D. Marianne Brow-er Blair, Lifting the Genealogical Veil: A Blueprint for Legislative Reform of the Disclosure of Health-Related Information in Adoption, 70 N.C. L.Rev. 681, 737 n. 291 (1992) (citing Catherine A. Reiser, Basic Principles of Genetics: A Human Approach, in Wisconsin Clinical Genetics Ctr. & Waisman Ctr. on Mental Retardation & Human Development, Genetic Family History: An Aid to Better Health of Adoptive Children 65-66 (1984)).