Rothenberg v. Milne12/5/2000
Petition for Review Denied February 13, 2001.
SALLY ROTHENBERG, ET AL.,
APPELLANTS,
v.
GREGORY MILNE, M.D., ET AL.,
RESPONDENTS,
BEHAVIORAL HEALTH SERVICES, INC.,
RESPONDENT,
BCBSM, INC.,
D/B/A BLUE CROSS AND BLUE SHIELD OF MINNESOTA,
RESPONDENT.
Hennepin County District Court File No. 97-7636
Jeffrey R. Anderson, Frances E. Baillon, Reinhardt and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101; and R. Christopher Barden, R.C. Barden & Associates, 1093 East Duffer Lane, Suite 100, North Salt Lake, UT 84054 (for appellants) John R. McBride, Lommen, Nelson, Cole & Stageberg, 1800 Ids Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents Gregory Milne, M.D., et al.) William H. Leary, Jean B. Hoppe, Geraghty, O'Loughlin & Kennedy, P.A., 1400 Ecolab University Center, 386 North Wabasha Street, St. Paul, MN 55102 (for respondent Behavioral Health Services, Inc.) Eric J. Magnuson, Doreen A. Mohs, Rider, Bennett, Egan & Arundel, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent Bcbsm)
Considered and decided by Crippen, Presiding Judge, Stoneburner, Judge, and Holtan, Judge.
The opinion of the court was delivered by: Holtan, Judge
Affirmed
Holtan, Judge* * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ยง 10.
UNPUBLISHED OPINION
This action arises out of a psychiatrist's treatment of appellant Sally Rothenberg and their subsequent personal relationship. Appellants Sally and Elliot Rothenberg challenge the dismissal of their vicarious liability, negligent supervision, and breach of warranty claims against the psychiatrist's former employer, respondent Behavioral Health Services, Inc. (BHSI), under the two-year statute of limitations applicable to malpractice actions against physicians. Appellants also argue that genuine issues of material fact exist on their claims for negligent retention, breach of contract, consumer fraud, and equitable estoppel claims and, therefore, the district court erred in granting summary judgment in favor of respondents on those claims. We affirm.
FACTS
BHSI was incorporated in 1992 as a joint venture between respondent BCBSM, Inc., and HealthSpan, the parent company of Abbott Northwestern Hospital. BCBSM initially owned 60% of BHSI's stock and became the full owner in October 1994. At all times relevant to this case, three BCBSM executives were members of BHSI's board.
BHSI employs therapists and psychologists to provide mental health counseling services to individuals. BHSI does not employ psychiatrists, but rather, contracts with psychiatrists to provide medication management to its patients. In 1993 and 1994, BHSI had contracts with eight to twelve psychiatrists, one of whom was respondent Gregory Milne, M.D.
Kathleen Garry, M.A., L.P., who was employed as a therapist by BHSI, treated Sally Rothenberg from December 1992 until April 1993. Garry referred Sally Rothenberg to Milne for medication management. Milne treated Sally Rothenberg at BHSI from January 1993 until March 14, 1994.
While under contract with BHSI, Milne also maintained a private practice, respondent Twin City Psychiatric Associates, P.A. (TCPA). On November 19, 1993, two TCPA employees, Patricia Hagge and Mary Hayes, observed Milne under the influence of drugs or alcohol and made a report to Ph
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