Heather Fitzgerald, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1224

Heather Fitzgerald,
Appellant,

vs.

Dr. Lance Silverman, M. D., et al.,
Respondents.

Filed April 9, 2018
Reversed and remanded
Bratvold, Judge

Hennepin County District Court
File No. 27-CV-16-14189

Joshua M. Tuchscherer, Meshbesher & Spence, Ltd., Minneapolis, Minnesota; and

Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota (for appellant)

Katherine A. McBride, Barbara A. Zurek, Meagher & Geer PLLP, Minneapolis, Minnesota
(for respondent)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Florey ,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Heather Fitzgerald appeals the district court’s dismissal of her medical malpractice
complaint against Dr. Lance Silverman, Silverman Orthopedics, P.C., and Silverman
Ankle and Foot (respondents). The district court granted respondents’ motion to dismiss
2
after concluding that Fitzgerald failed to commence her action before the statute of
limitations expired. Because the record presented a genuine issue of material fact regarding
the date medical treatment terminated, the district court erred in summarily dismissing
Fitzgerald’s complaint; therefore, we reverse and remand.
FACTS
A. Record Evidence Regarding Course of Medical Treatment
In July 2012, Silverman began treating Fitzgerald for a painful bunionette deformity
on her left forefoot. He recommended a magnetic resonance image (MRI) and referred her
to another doctor for “lumbar sympathetic nerve blocks.” In August, Fitzgerald saw
Silverman at his clinic; he discussed her MRI and recommended surgery. In October,
Silverman also recommended treatment for a bunionette on Fitzgerald’s right foot.
Silverman performed surgery on Fitzgerald’s left and right f eet on October 16, 2012 .
Fitzgerald was discharged the same day but soon “experienced extraordinary pain.”
Between the surgery and October 25, 2012, Fitzgerald called both Silver man and the
hospital where the surgery occurred numerous times complaining of pain, and Silverman
prescribed pain relievers on several occasions.
On October 25, Silverman examined Fitzgerald at his clinic and instructed her to
report to the emergency room. Fitzgerald remained in the hospital from October 25 until
November 2; Silverman primarily managed her care. He discharged Fitzgerald with
instructions to “return to his care for follow-up.”
3
On November 11, Fitzgerald saw two other doctors, both of whom recommended
amputation. On November 12, Fitzgerald returned to Silverman, who said that her feet were
healing properly and that she could “begin walking on both feet.”
In the complaint that was served on respondents, Fitzgerald alleged that the
November 12 office visit “was the last time” she treated with Silverman. After respondents
sought to dismiss her complaint under the statute of limitations, Fitzgerald submitted an
affidavit in which she attested that, on November 21, 2012, she “participated in a phone
call with Dr. Silverman’s office and staff .” Fitzgerald also averred that, during this
telephone call, she discussed her “current condition and medications, prognosis, and
treatment options.”
Fitzgerald’s medical treatment eventually led to below-knee amputations of her left
leg in February 2014, and of her right leg in July 2014.
B. Procedural History

Fitzgerald sued respondents, alleging that Silverman’s professio nal negligence
caused her amputations. She first attempted to serve respondents with her complaint on
June 30, 2016. In their answer, respondents alleged that service was ineffective. On
November 14, 2016, respondents moved to dismiss Fitzgerald’s complaint. Respondents
argued that service was ineffective because the process server left the complaint with
Silverman’s administrative assistant, who did not have the authority to accept service on
behalf of respondents. Respondents also argued that Fitzgerald failed to commence her
medical negligence action within the four- year statute of limitations under Minn. Stat.
§ 541.076(b) (2016). On November 16 and 18, Fitzgerald served process on respondents.
4
Fitzgerald opposed dismissal and argued that she had properly served respondents in June
and November, and that the action had been commenced well within the four-year statute
of limitations.
After a hearing on the motion to dismiss, the district court granted Fitzgerald’s
request for limited discovery on service of process because “[i]t is not at all clear on this
record” whether respondents misled Fitzgerald into reasonably believing that the June
service was effective. Following supplemental submissions by all parties, the district court
issued a March 22, 2017 order finding “as a matter of law” the June service was invalid
and the only “good” service occurred on November 16, 2016. 1 The district court added,
however, that it was “hesitant to rule as a matter of law” regarding when Silverman last
treated Fitzgerald. Reasoning that whether “good service” occurred within the statute of
limitations “depends on when the last services were provided,” the district court asked the
parties “to submit written arguments as to why the Court should or should not order a bi-
furcated jury trial” to determine whether Silverman treated Fitzgerald after November 12,
2012.
In her written argument, Fitzgerald opposed bifurcation, requesting a single trial on
both the statute of limitations issue and on medical negligence. Respondents’ written
argument opposed any trial for two reasons: (1) Fitzgerald’s cause of action accrued before
November 12, 2012; and (2) no evidence established treatment after November 12, 2012,
because Fitzgerald could not defeat summary judgement by averring facts in her affidavit

1 On appeal, Fitzgerald does not contend the June service was effective.
5
that contradicted her complaint. In support of their position, respondents submitted an
affidavit by Silverman attesting that he was not in the “Edina Clinic” at the time of the
November 21 telephone call described in Fitzgerald’s affidavit; he also averred that he did
not speak to Fitzgerald on November 21 or at “any other time” after November 12.
Silverman’s affidavit also stated that “the last time” he provided treatment and care for
Fitzgerald was on November 12, 2012.
On May 22, 2017, the district court issued a written order that granted respondents’
motion to dismiss, reasoning that “[w]hen treatment ended is the critical issue,” and no
“credible evidence” established medical service was provided after November 12, 2012,
because the “undisputed fact” is that Fitzgerald “did not talk” to Silverman on
November 21, 2012. Also, the district court stated “[t]here was no care, advice,
consultation or treatment” in the November 21 phone call.
Fitzgerald sought leave to file a motion for reconsideration by letter, contending that
Fitzgerald and Silverman provided “two polar opposite attestations. ” Fitzgerald pointed
out that the parties submitted memoranda simultaneously, and her memorandum on
bifurcation asked for permission to respond to any new evidence. Finally, Fitzgerald stated
that, if allowed to do so, she would supplement the record with an affidavit averring that
Silverman “reached” Fitzgerald “by phone” on November 21, 2012, and they discussed her
treatment.
The district court denied leave to reconsider and, in a separate order, amended the
order granting dismissal to direct entry of judgment. Fitzgerald appeals.
6
D E C I S I O N
I. The district court erred when it dismissed Fitzgerald’s complaint based on
the statute of limitations.

Respondents moved to dismiss Fitzgerald’s complaint under Minn. R. Civ. P.
12.02(c) for insufficient service of process and failure to initiate the action within the four-
year statute of limitations under Minn. Stat. § 541.076(b). Rule 12.02 states that “[i]f, on a
motion asserting the defense that the pleading fails to state a claim upon which relief can
be granted, matters outside the pleading are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of as provided in Rule
56.” Minn. R. Civ. P. 12.02; see also Antone v. Mirviss , 720 N.W.2d 331, 335 (Minn.
2006). Here, the parties presented, and the court accepted and considered, matters outside
the pleadings in deciding respondents’ motion to dismiss. Accordingly, we review the
district court’s dismissal under the summary judgment standard.
2
This court reviews summary -judgment decisions de novo. Riverview Muir Doran,
LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). “In doing so [this court]
determine[s] whether the district court properly applied the law and whether there are

2 A motion to dismiss for failure to state a claim upon which relief can be granted falls
under Minn. R. Civ. P. 12.02(e); in contrast, respondents moved under rule 12.02(c). But
courts have applied rule 12.02 to convert motions to dismiss into summary judg ment
motions where matters outside the pleadings are considered. See Antone, 720 N.W.2d at
334 (considering motion to dismiss for lack of jurisdiction as summary judgment motion,
even though the movant did not “specify[]” the applicable rule); Bush v. City of Lakefield,
399 N.W.2d 169, 171 (Minn. App. 1987)(“[A] Rule 12 motion is converted to a Rule 56
motion if matters outside the pleadings are considered to resolve the motion.” ), review
denied (Minn. Mar. 18, 1987).

7
genuine issues of material fact that preclude summary judgment.” Id. We review the
evidence in the light most favorable to the nonmoving party. STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76 -77 (Minn. 2002). It is error for the district court on
summary judgment to weigh evidence or assess the credibility of witnesses; these
determinations must be left to the fact- finder. See Hoyt Props., Inc. v. Prod. Res. Grp.,
L.L.C., 736 N.W.2d 313, 320 (Minn. 2007). Further, “the construction and applicability of
a statute of limitation or repose is a question of law subject to de novo review.” State Farm
Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 883 (Minn. 2006). But, “[w]here there are
disputed question s of material fact as to whether a plaintiff is barred by the statute of
limitations, these questions are to be decided by a jury.” Ciardelli v. Rindal , 582 N.W.2d
910, 912 (Minn. 1998).
A. The statute of limitations began to run when Fitzgerald’s treatment with
Silverman ended.

A plaintiff must commence an action pertaining to medical malpractice within four
years “from the date the cause of action accrued.” Minn. Stat. § 541.076(b). Respondents
argue that Fitzgerald’s cause of action accrued at the earliest date Fitzgerald alleges she
suffered harm from respondents’ medical negligence. Fitzgerald argues her cause of action
accrued when Silverman ceased to medically treat Fitzgerald. The district court agreed with
Fitzgerald.
Generally, medical-malpractice actions in Minnesota accrue when “the physician’s
treatment for a particular condition ceases ”; this is known as the termination-of-treatment
rule. Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn. App. 2000) (quoting Grondahl v. Bulluck,
8
318 N.W.2d 240, 243 (Minn. 1982)). There is an exception, however, “where there is a
single act of allegedly negligent conduct.” Id. This exception applies only “when the
alleged tort consists of (1) a single act; (2) wh ich is complete at a precise time; (3) which
no continued course of treatment can either cure or relieve; and (4) where the plaintiff is
actually aware of the facts upon which the claim is based.” Id. When the single-act
exception applies, “the statute of limitations begins to run at the time the plaintiff sustains
damage from the act.” Id. (citing Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d
425, 428-29 (Minn. 1988)).
Respondents appear to argue that the single-act exception is the generally applicable
rule because, according to respondents, the Minnesota Supreme Court overruled the
termination-of-treatment rule in MacRae v. Group Health Plan, Inc., 753 N.W.2d 711, 717
(Minn. 2008). We disagree. MacRae recognized that the single-act medical tort gives rise
to an exception to the termination-of-treatment rule. Id. at 718 (stating the termination-of-
treatment rule “does not apply when a patient’s injury was caused by a single discrete and
identifiable act by the physician”). MacRae applied the single-act exception, but that case
involved a misdiagnosis, an act which the supreme court has long held falls into the single-
act exception. See, e.g. , Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn. 1993). MacRae
did not hold or even suggest that it was overruling the termination-of-treatment rule.
Neither party contends that Fitzgerald’s cause of action arose from a single act. As
a result, the termination-of -treatment rule applies, and the statute of limitations began to
run when Fitzgerald’s treatment with Silverman ended.
9
B. There was a genuine issue of material fact regarding w hen Fitzgerald
terminated treatment with Silverman.

Fitzgerald argues that she terminated treatment with Silverman no earlier than
November 21, 2012, and that the statute of limitations, therefore, did not bar her claim
until November 21, 2016, at least three days after she effectively served respondents on
November 16 and 18, 2016. Respondents contend that Fitzgerald terminated treatment
with Silverman on Nove mber 12, 2012, and that Fitzgerald, therefore, failed to serve
respondents before the limitations period expired.
In Grondahl, the supreme court considered how to determine when a patient has
ceased to treat with a doctor for purposes of the statute of limitations. 318 N.W.2d at 243.
In that case, the district court granted summary judgment on the ground that the appellant’s
suit was untimely, and the supreme court reversed. Id. at 241. In doing so it announced,
first, it is not necessary for a doctor to formally discharge a patient. Id. at 243. Next,
Grondahl held that courts should evaluate three factors to determine when treatment
ended: “(1) whether there is a relationship between physician and patient with regard to
the illness; (2) whether the physician is attending and examining the patient; and
(3) whether there is something more to be done.” Id. “The first two factors are closely
related.” Id. We will discuss each Grondahl factor in turn.
Under the first Grondahl factor, the record created an issue of material fact whether
the relationship between Silverman and Fitzgerald terminated on November 12. In its
analysis of the first factor, Grondahl outlined the consistent contacts the patient had with
her doctor and eventually concluded a jury could have reasonably found a treatment
10
relationship continued to exist. Id. at 241-42. Here, the record established consistent
contacts between Fitzgerald and Silverman through several visits, telephone contacts, and
hospital care from July through November 2012. On November 2, Silverman discharged
Fitzgerald from the hospital with directions to follow up with an office visit, which
Fitzgerald did on November 12. Similar to the evidence considered in Grondahl, there
was no evidence that Silverman or Fitzgerald viewed the November 12 appointment as
the end of Fitzgerald’s treatment. See id. at 242 (noting that “[a]t no time during [the last
in-person visit] did [the doctor] state that he was ceasing his treatment of [the patient]”).
During the November 12 appointment, Silverman evaluated Fitzgerald’s recovery and
said that she was “heal[ing]” from her ailments. Then, on November 21, Fitzgerald called
Silverman’s office to discuss her “current condition and medications, prognosis, and
treatment options.” The record supported the inference that phone calls were a consistent
part of Fitzgerald’s treatment relationship with Silverman.
3
Respondents contend that no evidence established that Fitzgerald spoke with
Silverman during the November 21 call, and he averred he was neither aware of her call
nor provided any treatment in connection with it. Accordingly, respondents argue that
dismissal was appropriate under Grondahl’s second factor, which requires the court to
consider whether a physician has attended or examined the patient, because no evidence

3 As additional support for her claim that she was in a treatment relationship with
Silverman, Fitzgerald submitted an affidavit identifying expert medical evidence that
phone calls were an expected means of maintaining a treatment relationship for this kind
of ailment. While Fitzgerald’s attorney signed the affidavit, Fitzgerald’s expert verified the
accuracy of its contents.
11
established that Silverman attended or examined Fitzgerald after November 12. Id. at 243
We disagree because Grondahl recognized that “telephone consultations may constitute
proof of a continuing physician-patient relationship and evidence that the physician is
attending and examining the patient.” Id. There, the doctor spoke directly with the patient
during the phone call, in contrast with the phone call in Fitzgerald’s affidavit. Id. But given
the months-long relationship between Fitzgerald and Silverman, the previous phone
consultations that resulted in medical treatment, as well as the proximity of the last in -
person treatment, we determine this difference is not dispositive.
A reasonable jury could find, based on the months-long relationship and the
November 21 phone call, that Fitzgerald continued to seek Silverman’s treatment and trust
in his care. The supreme court has noted that the “policy reason” behind the termination -
of-treatment rule “is that the patient must repose reliance upon [her] 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). 4 Viewing the
evidence in the light most favorable to Fitzgerald, as we must, the record established

4 Respondents rely on a case that we determine is inapplicable. In Giles v. Sanford
Memorial Hospital and Nursing Home, this court held that a jury could not reasonably find
that a telephone call between a patient and physician was “part of a continuing physician-
patient relationship.” 371 N.W.2d 635, 637 (Minn. App. 1985). But there, unlike the case
before us, six months had passed since the physician had examined the patient and they did
not discuss medication or treatment during the call; the patient called to inform the
physician that he had changed doctors and to obtain a letter stating that the physician had
released the patient from care. Id.
.
12
consistent phone calls between Fitzgerald, Silverman, and Silverman’s office; in fact, on
one occasion before November, Fitzgerald called Silverman’s office and spoke with staff
who emailed Fitzgerald’s message to Silverman. Nothing in the record established that
Silverman or his staff told Fitzgerald that the November 21 phone call was different from
any of the previous phone calls during which Fitzgerald had communicated with her
doctor through his staff.
Under the third Grondahl factor, we consider whether any evidence established that
“something more” remained to be done. 318 N.W.2d at 243. Grondahl stated that the third
factor “requires expert medical testimony.” 318 N.W.2d at 243. In this case, Fitzgerald’s
expert verified an attorney’s affidavit stating that the care Fitzgerald received was a
continued course of treatment from Silverman to treat a painful condition. Fitzgerald also
offered evidence that her medical providers recommended and performed amputations to
treat her condition.
Taking the record evidence as a whole and viewing it in the light most favorable to
Fitzgerald, she raised a genuine issue of material fact regarding each Grondahl factor;
specifically, conflicting evidence was submitted regarding whether Fitzgerald was in a
patient relationship with Silverman after November 12, whether Silverman attended to
Fitzgerald’s treatment via telephone on November 21, and whether the parties
contemplated additional treatment after the office visit on November 12 or through
telephone c ommunications on November 21. This evidence created genuine issues of
material fact that were inappropriate for resolution on summary judgment.
13
Respondents argue that summary judgment was appropriate because Fitzgerald’s
complaint alleged that November 12 “was the last time Ms. Fitzgerald treated with
Dr. Silverman.” But parties are not bound to allegations in a complaint. See Doe 136 v.
Liebsch, 872 N.W.2d 875, 882- 83 (Minn. 2015) (holding that statements of fact in a
complaint may be used “for impeachment purposes” when they contradict later
testimony). While complaint allegations may be an effective means of challenging a
plaintiff’s credibility, it is inappropriate for the court to consider credibility on summary
judgment. See Hoyt Props., 736 N.W.2d at 320. We conclude that genuine issue s of
material fact existed regarding when Fitzgerald terminated treatment with Silverman and
whether their relationship ended after November 12.
II. Fitzgerald was denied sufficient opportunity to oppose summary judgment.

Even if the existing record created no genuine issue of material fact regarding when
Fitzgerald terminated treatment with Silverman, we would nonetheless reverse and
remand because the district court did not provide Fitzgerald sufficient opportunity to
oppose summary judgment.
In its March 22 order, the district court asked the parties to simultaneously submit
memoranda addressing whether the court “should or should not order a bi-furcated jury
trial” to determine whether Fitzgerald received medical treatment from Silverman after
November 12, 2012. Fitzgerald argued in favor of a single jury trial for both issues and
asked the district court for the opportunity to respond to any new issues respondents raised
in their memorandum. Respondents submitted a memorandum arguing that no jury trial
was necessary, and, as a part of their submission, included an affidavit from Silverman
14
attesting that he did not speak to Fitzgerald on November 21, he did not provide any
treatment in connection with the call, and he did not treat Fitzgerald after November 12.
Based on the parties’ written submissions and without the benefit of a hearing, the district
court ruled that there was no issue of material fact and dismissed Fitzgerald’s complaint.
Fitzgerald argues that the district court impermissibly denied her a meaningful opportunity
to oppose respondents’ motion, which articulated a reason to dismiss that was different
from the grounds raised in their initial motion, and which relied on previously undisclosed
evidence in the form of Silverman’s affidavit.
We agree with Fitzgerald that the district court’s March 22 order effectively allowed
respondents to move for and receive summary judgment without sufficient notice to
Fitzgerald. This court has held that “[t]he district court . . . must afford the adverse party
a meaningful opportunity to oppose [summary judgment].” Hebrink v. Farm Bureau Life
Ins. Co., 664 N.W.2d 414, 419 (Minn. App. 2003). A meaningful opportunity to oppose
summary judgment may vary based on the circumstances of the individual case, but
typically includes sufficient notice to the parties and the opportunity “to marshal evidence
in opposition.” Id. at 419-20. We conclude the district court in this case did not provide
Fitzgerald with sufficient opportunity to oppose respondents’ motion for two reasons.
First, the district court did not provide Fitzgerald sufficient notice that it was
considering summary judgment. The district court’s March 22 order implied that it had
determined there was a genuine issue of material fact regarding when Fitzgerald last
received medical treatment from Silverman. For example, the court stated it was “hesitant
to rule as a matter of law on the question of when Dr. Silverman provided his last service
15
to Ms. Fitzgerald.” Also, the district court asked the parties “why the [c]ourt should or
should not order a bi-furcated jury trial,” and did not indicate it was considering whether
a jury trial was necessary at all. We conclude that the March 22 order was insufficient
notice that the district court was considering summary judgment.
Second, respondents did not introduce Silverman’s affidavit until April 5, which
was the deadline to submit memoranda on bifurcation; this meant that Fitzgerald did not
have an opportunity to marshal evidence in opposition . The parties had traded limited
discovery since November about whether the June service of process was effective, but
had not engaged in discovery on Fitzgerald’s course of medical treatment. Indeed, the
district court had not issued a scheduling order. Respondents did not submit Silverman’s
affidavit until Fitzgerald reasonably believed she had already successfully defeated
summary judgment on the issue. As a result, Fitzgerald had no reason to further
supplement the record , although we note that she explicitly asked to do so in her
bifurcation memorandum.
Respondents are correct that it was Fitzgerald’s burden to produce evidence. But
this burden does not affect our conclusion because Fitzgerald was not given sufficient
opportunity to oppose summary judgment. We note that after the district court issued its
May 22 order, Fitzgerald asked for leave to move for reconsideration, and stated that
Fitzgerald would attest that she spoke directly to Silverman on November 21. This
evidence would be critical to a jury’s factual determination regarding termination of
treatment.
16
We stress that we do not hold that Fitzgerald commenced her action within the
statute of limitations. We hold only that the record created a genuine issue of material fact
regarding when her treatment with Silverman terminated, and that a jury must make this
determination. We reverse the district court’s judgment dismissing Fitzgerald’s complaint
and remand for further proceedings consistent with this opinion.
Reversed and remanded.