STATE OF MINNESOTA
IN SUPREME COURT
A14-0413
Court of Appeals Anderson, J.
Took no part, Hudson, McKeig, JJ.
Jerry Expose, Jr.,
Respondent,
vs. Filed: November 30, 2016
Office of Appellate Courts
Thad Wilderson & Associates, P.A.,
Appellant,
Nina Mattson,
Appellant.
________________________
A.L. Brown, Marcus L. Almon, Capitol City Law Group, LLC, Saint Paul, Minnesota, for
respondent.
William M. Hart, Nicole L. Brand, Kathleen M. Ghreichi, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota, for appellant Thad Wilderson & Associates, P.A.
Peter G. Van Bergen, Meaghan C. Bryan, Cousineau McGuire Chartered, Minneapolis,
Minnesota, for appellant Nina Mattson.
Kay Nord Hunt, Michael N. Leonard, Lommen Abdo, P.A., Minneapolis, Minnesota, for
amicus curiae Minnesota Psychological Association.
Nicholas B. Lienesch, Hans A. Anderson, Saint Paul, Minnesota, for amicus curiae
Minnesota Board of Psychology.
________________________
1
SYLLABUS
1. Immunity is not provided under Minn. Stat. § 148.975 (2014) for an
unlicensed intern-therapist who discloses a patient’s threat of physical violence against a
specific person to law enforcement.
2. The absolute privilege doctrine does not shield a clinic employee’s pretrial
statements that disclosed the nature and circumstances of a patient’s confidential treatment
information either to law enforcement or, in preparation for trial, to the prosecutors.
3. Because the record does not establish that the patient consented to the
disclosure of information about his treatment, an intern-therapist’s disclosure of that
information violated the Minnesota Health Records Act, Minn. Stat. §§ 144.291-.298
(2014).
Affirmed.
OPINION
ANDERSON, Justice.
Respondent Jerry Expose, Jr. brought a civil action against appellant Thad
Wilderson & Associates, P.A. (the clinic) and appellant Nina Mattson (collectively
appellants), asserting claims for unlawful disclosure of health records under the Minnesota
Health Records Act, §§ 144.291-.298 (2014), invasion of privacy, vicarious liability, and
negligent supervision. Appellants jointly moved for judgment on the pleadings, and the
district court dismissed the claims. As relevant here, the district court ruled that appellants
are immune from liability under Minn. Stat. § 148.975 (2014), that they are immune from
liability under the common law doctrine of absolute privilege, and that Expose consented
2
to Mattson’s disclosures. The court of appeals reversed on all of these issues except the
immunity under the common law doctrine of absolute privilege as to the testimony from
the criminal trial. We granted the clinic’s petition, as well as Mattson’s petition, for review.
The three questions presented here arise in the context of a relationship between a
patient and an unlicensed intern-therapist. First, we determine whether Minn. Stat.
§ 148.975, which imposes a duty to warn on a licensed therapist when a specific, serious
threat of physical violence is made against a specific, clearly identified or identifiable
person, imposes the same duty on an unlicensed intern-therapist to disclose that
information to law enforcement. Second, we determine whether the common law doctrine
of absolute privilege shields the disclosures made by an unlicensed intern-therapist to law
enforcement and to prosecutors. Third, we determine whether a consent form notifying a
client of the client’s rights under the Minnesota Health Records Act authorizes the release
of the client’s medical records. Because we answer all three questions in the negative, we
affirm the court of appeals.
I.
In March 2012, Expose was convicted of making terroristic threats against his 6-
year-old daughter, his daughter’s mother, and the mother’s unborn child. As part of his
sentence, Expose was ordered to undergo anger-management therapy. In September 2012,
he began therapy at the clinic. Before his first session, Expose signed a “Client Rights and
Responsibilities” form, which stated that information he shared with his therapist would be
“treated as strictly confidential” unless certain described events occurred. Mattson, an
unlicensed intern-therapist providing individual therapy under the clinic’s supervision, was
3
Expose’s therapist.1 On October 10, 2012, during one of his therapy sessions, Expose made
statements that threatened serious injury to the child protection caseworker assigned to a
custody case involving his daughter. Mattson reported Expose’s threats to her supervisor
and then, at the direction of her supervisor, to both local law enforcement and to the
caseworker.
State v. Expose
Based on the statements he made to Mattson, Expose was arrested and charged with
one count of making terroristic threats under Minn. Stat. § 609.713, subd. 1 (2014). The
State subpoenaed Mattson to testify at Expose’s criminal trial on this charge. In early
January 2013, Mattson met with the prosecutors who were assigned to Expose’s case and
disclosed information about the threats Expose made at his October 10 counseling session.
Before trial, Expose moved to exclude any testimony from Mattson about whether, in light
of her status as an unlicensed intern-therapist, she was obligated under Minn. Stat.
§ 148.975 to disclose Expose’s alleged threats to fulfill a statutory duty to warn. The
district court denied Expose’s motion. The State then called Mattson as the first witness at
trial. Expose objected, arguing that the therapist-client privilege prohibited Mattson from
testifying. The district court overruled Expose’s objection, reasoning that the
1
See Minn. Stat. § 148B.33, subd. 1(4) (2014) (requiring an applicant for a license
from the Board of Marriage and Family Therapy to complete “at least two years of
supervised postgraduate experience in marriage and family therapy”); Minn. Stat.
§ 148B.5301, subd. 1(a)(3) (2014) (requiring an applicant for a license as a professional
clinical counselor to have no “fewer than 700 hours” of “supervised field experience in
counseling”).
4
therapist-client privilege did not cover statements threatening imminent harm to a person
or persons.
A jury found Expose guilty of making terroristic threats, and the district court
sentenced him to a stayed term of 28 months in prison. Expose appealed his conviction,
arguing that Mattson’s trial testimony was inadmissible under the therapist-client privilege.
The court of appeals agreed with Expose and reversed his conviction, holding that the
therapist-client privilege prohibited Mattson from testifying about information she learned
during Expose’s therapy sessions, including the content of Expose’s threats. See State v.
Expose, 849 N.W.2d 427, 437 (Minn. App. 2014). The court of appeals further held that
admitting Mattson’s testimony was prejudicial because Expose’s privileged statements
could not have been admitted through the testimony of any other witness. Id. at 436-37.
We granted review on three issues in Expose’s criminal case, including whether the
therapist-client privilege, which prohibits therapists from disclosing information or
opinions in court that are acquired from clients in the therapist’s professional capacity, see
Minn. Stat. § 595.02, subd. 1(g) (2014), contains an exception for threatening statements
made by the client, State v. Expose, 872 N.W.2d 252, 256 (Minn. 2015). We held that
there is no “threats exception” to the statutory therapist-client privilege. Id. at 259. We
concluded that the duty to warn imposed by Minn. Stat. § 148.975 creates a discrete duty
to warn the potential victim of a specific serious threat of physical violence and that the
duty is discharged once the threat is communicated to the potential victim or to a law
enforcement agency. Expose, 872 N.W.2d at 258. The therapist-client privilege, on the
other hand, is a statutory evidentiary privilege that addresses when and under what
5
circumstances therapists are permitted to testify about information acquired while treating
a client. Expose, 872 N.W.2d at 257-58.
Expose v. The Clinic and Mattson
Before Expose appealed his criminal conviction, he commenced a civil suit against
appellants, asserting claims against Mattson for violation of the Minnesota Health Records
Act, Minn. Stat. §§ 144.291-.298, and invasion of privacy based on Mattson’s disclosures
to law enforcement and prosecutors.2 Expose also asserted claims against the clinic for
vicarious liability and negligent supervision.
Appellants brought a joint motion for judgment on the pleadings under Minn. R.
Civ. P. 12.03, arguing that they are immune from liability with respect to Expose’s claims.
The district court dismissed Expose’s claims on the grounds that the communications
between Mattson and the intended victim, the police, and prosecutors were made in good
faith and thus protected by immunity under Minn. Stat. § 148.975; that the absolute
privilege doctrine shields Mattson from liability; and that Expose consented to the
disclosure of his health records.
Expose appealed, and the court of appeals affirmed in part, reversed in part, and
remanded, concluding that appellants are not immune from liability under section 148.975,
the duty-to-warn statute, because the plain language of section 148.975 did not apply to an
2
In addition to Mattson’s disclosures to prosecutors before the trial, Expose relied on
Mattson’s disclosures to the investigating officer who spoke with her between October and
November 2012 to obtain additional information about Expose’s threatening statements.
Mattson answered the officer’s questions and gave the officer a copy of her notes from the
October 10, 2012, counseling session.
6
unlicensed intern-therapist like Mattson. Expose v. Thad Wilderson & Assocs., P.A., 863
N.W.2d 95, 106 (Minn. App. 2015). The court of appeals also determined that Mattson is
not entitled to the protection of the absolute privilege doctrine for the disclosures she made
to prosecutors before Expose’s criminal trial. Id. at 107-08. But the court of appeals
affirmed the applicability of the common law doctrine of absolute privilege to the
disclosures Mattson made during her compelled testimony at Expose’s criminal trial. Id.
Finally, the court of appeals concluded that the consent form signed by Expose did not
comply with section 144.293, which provides for written consent of a release of health
records. Id. at 104. The court of appeals remanded the case to the district court for further
proceedings. Id. at 111. We granted the separate petitions for review filed by Mattson and
the clinic.
When considering an appeal from summary judgment,3 we must determine whether
there are any genuine issues of material fact and whether the district court erred in its
application of the law. RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d 1, 6 (Minn. 2012). We
review the district court’s legal decisions on summary judgment de novo, and we view the
evidence in the light most favorable to the party against whom summary judgment was
granted. Id.
3
As noted above, appellants moved for judgment on the pleadings under Rule 12.03
of the Minnesota Rules of Civil Procedure. The court of appeals correctly recognized that
a summary judgment standard applies on appellate review because the district court relied
on documents that were not part of the pleadings. Expose, 863 N.W.2d at 101. The parties
do not appeal this aspect of the decision and, accordingly, we apply the same standard here.
7
II.
We first consider whether the duty to warn imposed by Minn. Stat. § 148.975 applies
to an unlicensed intern-therapist, and in turn whether Mattson is entitled to immunity for
the disclosure of the information and notes from the October 10, 2012, therapy session to
law enforcement as it continued the investigation into Expose’s threatening statements.4
Statutory interpretation presents a question of law, which we review de novo. Vlahos v.
R&I Constr. of Bloomington, Inc., 676 N.W.2d 672, 679 (Minn. 2004). When the language
of a statute is unambiguous, we must follow the plain language of the statute. Id.
Minnesota Statutes § 148.975 states in relevant part:
Subd. 2. Duty to warn. The duty to predict, warn of, or take
reasonable precautions to provide protection from, violent behavior arises
only when a client or other person has communicated to the licensee a
specific, serious threat of physical violence against a specific, clearly
identified or identifiable potential victim. If a duty to warn arises, the duty
is discharged by the licensee if reasonable efforts, as defined in subdivision
1, paragraph (c), are made to communicate the threat.
....
4
The question presented here is a narrow one. Expose acknowledged in the
proceedings before the district court that Mattson’s “conversation with [the caseworker,
the investigating officer], and her supervisor,” fell “within the duty to warn.” He did not
allege that Mattson made the disclosures “in bad faith.” Additionally, Expose’s complaint
does not allege any liability for Mattson’s initial disclosures to the caseworker or to law
enforcement. “A reviewing court must generally consider ‘only those issues that the record
shows were presented and considered by the trial court in deciding the matter before it.’ ”
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quoting Thayer v. Am. Fin. Advisers,
Inc., 322 N.W.2d 599, 604 (Minn. 1982)). Thus, we do not consider the issue of licensure
as it relates to Mattson’s initial disclosures.
8
Subd. 4. Disclosure of confidences. Good faith compliance with the
duty to warn shall not constitute a breach of confidence and shall not result
in monetary liability or a cause of action against the licensee.
....
Subd. 7. Optional disclosure. Nothing in section 148.975 shall be
construed to prohibit a licensee from disclosing confidences to third parties
in a good faith effort to warn against or take precautions against a client’s
violent behavior or threat to commit suicide for which a duty to warn does
not arise.
Subd. 8. Limitation on liability. No monetary liability and no cause
of action, or disciplinary action by the board may arise against a licensee for
disclosure of confidences to third parties, for failure to disclose confidences
to third parties, or for erroneous disclosure of confidences to third parties in
a good faith effort to warn against or take precautions against a client’s
violent behavior or threat of suicide for which a duty to warn does not arise.
The plain language of section 148.975, subdivision 2, imposes a duty on a “licensee”
to warn of a client’s violent behavior when a “specific, serious threat of physical violence”
against another person is communicated to the licensee. For the purpose of this section,
the term “licensee”5 was defined as “a person who is licensed by the board [of psychology]
as a licensed psychologist or as a licensed psychological practitioner.” Minn. Stat.
§ 148.89, subd. 4 (2014). When a licensee acting in good faith to comply with the duty to
warn discloses “confidences,” “[n]o monetary liability and no cause of action, or
disciplinary action by the board [of psychology,] may arise against a licensee for disclosure
of confidences to third parties.” Minn. Stat. § 148.975, subds. 4, 8.
5
The definition of “licensee” for the purpose of section 148.975 was amended after
we granted review in this case. Act of May 22, 2016, ch. 163, art. 3, § 2, 2016 Minn. Laws
612, 644.
9
Mattson contends that, under the “optional disclosure” provision of section 148.975,
subdivision 7, she is entitled to immunity for her subsequent disclosures to the investigating
officer. Mattson argues that the duty to warn and to take precautions against violent
behavior “logically extends to assisting with the person’s criminal prosecution and
conviction.” Mattson bears the burden of establishing that she is entitled to immunity under
this provision of section 148.975. See J.E.B. v. Danks, 785 N.W.2d 741, 746 (Minn. 2010).
We do not agree with Mattson’s view of the immunity provided by section 148.975.
The plain terms of section 148.975 impose a duty to warn on “the licensee” to whom a
specific threat is communicated, Minn. Stat. § 148.975, subd. 2, and permit “a licensee” to,
optionally, disclose confidences to warn against violent behavior even though “a duty to
warn does not arise,” id., subd. 7. Because Mattson was not a “licensee” as defined by
section 148.89, she does not fall within the class of people covered by the statute. See
Minn. Stat. § 645.16 (2014).
Mattson also argues that she is entitled to immunity because she was acting as an
agent of an immune licensee when she disclosed confidential information to the
investigating officer. Assuming without deciding that an agency relationship existed, the
existence of an agency relationship would not change the outcome. Nothing in the plain
language of section 148.975 refers to agents or other unlicensed persons who work with or
under the supervision of a licensee. Also, Mattson’s agency argument would require us to
read language into the otherwise plain and unambiguous statute. There may well be sound
public policy reasons for expanding the scope of the duty to warn and the statutory
10
immunity beyond simply licensees,6 but that is a decision for the Legislature, not this court.
See White v. City of Elk River, 840 N.W.2d 43, 53 (Minn. 2013) (declining to
“impermissibly add language to the governing statute that does not exist”). We must read
this state’s laws as they are, not as some argue they should be. See In re Estate of Karger,
253 Minn. 542, 548, 93 N.W.2d 137, 142 (1958) (“What the law ought to be is for the
legislature; what the law is, rests with the courts.”). We therefore conclude that, because
the duty to warn imposed by Minn. Stat. § 148.975 did not immunize Mattson’s disclosures
to law enforcement during the course of its investigation, she is not entitled to relief on this
ground.
III.
Appellants next argue that the absolute privilege doctrine applies to the statements
Mattson made to law enforcement in the course of the investigation and to prosecutors in
preparing for her anticipated testimony at trial—specifically, about the nature and
circumstances of the threats Expose made against his caseworker. We review the
application of absolute privilege de novo. Minke v. City of Minneapolis, 845 N.W.2d 179,
182 (Minn. 2014).
The absolute privilege doctrine shields a speaker from liability for statements made
in judicial proceedings. Mahoney & Hagberg v. Newgard, 729 N.W.2d 302, 306 (Minn.
2007). Specifically, the doctrine may apply where a statement is (1) made by a judge,
attorney, or witness; (2) made at a judicial or quasi-judicial proceeding; and (3) relevant to
6
We express no opinion on whether Mattson would have a duty to warn under the
amended statute. Act of May 22, 2016, ch. 163, art. 3, § 2, 2016 Minn. Laws 612, 644.
11
the subject matter of the litigation. Id. (citing Matthis v. Kennedy, 243 Minn. 219, 224, 67
N.W.2d 413, 417 (1954)). Although the privilege is intended to encourage “frank
testimony by witnesses,” id., it “is not lightly granted and applies only in limited
circumstances,” Zutz v. Nelson, 788 N.W.2d 58, 62 (Minn. 2010).
The person claiming the protection of the doctrine bears the burden of proof.
Mahoney & Hagberg, 729 N.W.2d at 306. We will apply absolute privilege only when the
“ ‘administration of justice requires complete immunity from being called to account for
language used.’ ” Id. (quoting Matthis, 243 Minn. at 223, 67 N.W.2d at 417). Before
applying absolute privilege, however, we determine whether “there are competing policy
interests that would counsel against application of the privilege.” Id. at 309. For instance,
“[a] separate duty of a witness to remain silent, grounded for example in the attorney-client
privilege, might be a reason the public policy analysis would weigh against application of
the absolute privilege doctrine.” Id.
Although absolute privilege extends to statements published before a judicial
proceeding occurs, for absolute privilege to apply, the statements must have some relation
to the judicial proceeding. Id. at 306 (citing Matthis, 243 Minn. at 226-28, 67 N.W.2d at
418-19). For instance, voluntary witness testimony given in a deposition or affidavit
published prior to a judicial proceeding is protected by absolute privilege. Id. Statements
may be relevant, and therefore protected, if they “ ‘have reference and relation to the
subject matter of the action and [are] connected therewith[.] In other words, does it have
reference to or relation to or connection with the case before the court?’ ” Id. (alteration
in original) (quoting Matthis, 243 Minn. at 225, 67 N.W.2d at 418).
12
Mattson argues that she is entitled to the protection of absolute privilege because
her disclosures to law enforcement and the prosecutors had “some relation” to the criminal
proceeding. The court of appeals declined to apply absolute privilege to Mattson’s
voluntary pretrial disclosures to law enforcement and the prosecutors after the court of
appeals balanced the competing policy interest of the therapist-client privilege against the
purpose of the absolute privilege.7 Expose, 863 N.W.2d at 108. The court of appeals
concluded that the purpose of the therapist-client privilege (to keep information concealed)
and the purpose of the absolute privilege (to reveal information) are “so contrary and
inconsistent that applying the absolute privilege effectively would defeat the [therapist-
client] privilege.” Id. at 107. We agree.
We previously have declined to extend absolute privilege to a licensed psychologist
who disclosed to the patient’s mother and the mother’s attorney allegedly defamatory
statements that the patient made during a therapy session. Bol v. Cole, 561 N.W.2d 143,
149 (Minn. 1997). In Bol, we noted the commentary in the Restatement (Second) of Torts
that explained that the privilege rests to some extent on “ ‘a recognition of the necessity
that certain persons, because of their special position or status, should be as free as possible
from fear that their actions in that position might have an adverse effect upon their own
personal interests.’ ” Id. at 148 (quoting Restatement (Second) of Torts § 584, at 243
(1977)). Although the disclosures in Bol were not made in the context of a criminal
7
The court of appeals held that Mattson is entitled to the protection of absolute
privilege with respect to her trial testimony, Expose, 863 N.W.2d at 108, and this aspect of
the court’s decision is not before us.
13
investigation and proceedings, as here, our discussion of the public interest in Bol is
nonetheless instructive. We recognized that the public interest in encouraging
psychologists to accurately record information regarding their patients was strong, but “not
sufficiently strong” to warrant shielding psychologists from wrongful disclosures. Id. at
149. Given the narrow limits within which we apply absolute privilege, we required a
showing of a public interest “of paramount importance, such that it is entitled to protection
even at the expense of failing to compensate harm to the defamed person’s reputation.” Id.
Although the need to warn those who face a specific threat of violence is a
compelling public interest, that need is satisfied once an initial report is made to law
enforcement. See Minn. Stat. § 148.975, subd. 2. Here, given the facts of this dispute, we
cannot say that appellants have demonstrated a public interest “of paramount importance.”
We conclude that an absolute privilege does not extend to either the statement Mattson
made to prosecutors before trial or to the statements she made to the investigating officer
in her second conversation with that officer.8 Thus, we affirm the court of appeals on this
ground.
IV.
Finally, we determine whether Mattson violated the Minnesota Health Records Act
when she spoke with the investigating officer and prosecutors before trial. Because the
Client Rights and Responsibilities form that Expose signed was a notification of his rights
8
Appellants also asserted qualified privilege in their responses to Expose’s
complaint. Because neither the district court nor the court of appeals addressed the
application of a qualified privilege, we do not address whether such a privilege exists here.
14
as they relate to his health records, and was not a consent to release his health records, we
conclude that she violated the Act.
The Minnesota Health Records Act, specifically Minn. Stat. § 144.298, subd. 2(1),
provides a cause of action for negligently or intentionally releasing a health record in
violation of Minn. Stat. §§ 144.291-.297. The term “health record” is defined in the statute
to include “any information, whether oral or recorded in any form or medium, that relates
to the past, present, or future physical or mental health or condition of a patient [or] the
provision of health care to a patient.” Minn. Stat. § 144.291, subd. 2(c).
The Client Rights and Responsibilities form that Expose signed lists six
“responsibilities” that are expected of patients, such as the responsibility to keep scheduled
appointments, to actively participate in counseling sessions, and to inform the clinic if the
patient is dissatisfied with its services. The form also lists 13 rights that the patient is
entitled to expect from the clinic, such as the right to be treated with respect, to ask
questions, and to receive honest answers. The eighth item states that the client has the
following rights:
To have information about you treated as strictly confidential, unless:
a. You or your guardian give written permission to the
Multicultural Mental Health Clinic to release specific types of
information regarding your case to specific persons or agencies.
b. There is reasonable cause to believe that a child or
vulnerable adult is being neglected, or physically or sexually abused.
c. There is sufficient reason to believe that a client may do
bodily harm to self or others. In such a case, appropriate persons or
agencies will be contacted in order to prevent such injury.
15
d. The Multicultural Mental Health Clinic is subpoenaed
by a court of law to release information.
The court of appeals held that the Client Rights and Responsibilities form that
Expose signed before engaging the clinic’s services did not comply with the Minnesota
Health Records Act because the form did not specify the particular health records that could
be released once Expose signed it and did not specify the limits of Expose’s consent.
Expose, 863 N.W.2d at 104. We agree.
Minnesota Statutes § 144.293, subd. 2(1), allows for the release of health records
with “a signed and dated consent from the patient.” As the court of appeals noted, section
144.293 suggests that a consent form must include “specific limitations that would reflect
the patient’s knowing and voluntary authorization of a particular release.” Expose, 863
N.W.2d at 104. For example, Minn. Stat. § 144.293, subd. 10(a)(2) requires that a person
who requests the health records of a patient, while relying on patient’s consent, warrants
that the patient’s consent “accurately states the patient’s desire to have [his or her] health
records disclosed.” A person disclosing health records also must warrant that the
disclosure “complie[s] with the limits set by the patient in the consent.” Id., subd. 10(c)(3).
The form that Expose signed did not state his consent to disclose his records or include any
limitations on his consent. Therefore, the form is not the type of consent contemplated by
the statute. Id., subd. 2(1). Because Expose did not provide consent to disclose information
about his treatment in the manner set out in section 144.293, subdivision 2, Mattson’s
disclosure of Expose’s threats during her second conversation with the investigating officer
16
and during her pretrial meeting with prosecutors violated the Minnesota Health Records
Act. Accordingly, we affirm the decision of the court of appeals.
Affirmed.
HUDSON, J., took no part in the consideration or decision of this case.
McKEIG, J., not having been a member of this court at the time of submission, took
no part in the consideration of this decision.
17