Christopher Christopherson, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0064

Christopher Christopherson,
Appellant,

vs.

Alpha Service Industries, Incorporated,
Respondent.

Filed December 2, 2019
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CV-18-6047

A.L. Brown, Capitol City Law Group, LLC, St. Paul, Minnesota (for appellant)

Cheryl Hood Langel, Brian J. Kluk, McCollum, Crowley, Moschet, Miller & Laak, Ltd.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
After being released from prison and placed on supervised release, Christopher
Christopherson sought and received treatment from a clinic owned and operated by Alpha
Service Industries, Inc. (doing business as Alpha Human Services). Christopherson signed
a consent form that authorized Alpha to release information concerning his treatment to his

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probation officer. Two years later, while still on supervised release, Christopherson
informed Alpha that he wished to revoke his consent. Alpha later released information
concerning Christopherson’s treatment to his probation officer. Christopherson sued
Alpha, alleging a violation of the Minnesota Health Records Act. The district court granted
Alpha’s motion for summary judgment. We conclude that Alpha did not violate the health-
records act because the consent form that Christopherson signed expressly states that his
consent may not be revoked until he has completed his term of supervised release.
Therefore, we affirm.
FACTS
In 2013, Christopherson was convicted of a crime and sentenced by the St. Louis
County District Court to 39 months of imprisonment with a five-year term of conditional
release. While on conditional release, the department of corrections required
Christopherson to undergo treatment . Christopherson chose Alpha as a provider and, on
August 10, 2015, signed a one-page document entitled “Consent Form for Criminal Justice
System Treat ment Referrals. ” The consent form authorized Alpha and its affiliate s to
engage in “unrestricted communication wit h . . . [Christopherson ’s] parole or probation
officer (and their supervisors). ” Specifically, the document provides for the release of
confidential information concerning Christopherson’s progress and treatment by Alpha,
“including but not limited to release of progress evaluations, psychological test results,
case note summaries, a ttendance and participation reports, incident reports, and
recommendations.” In addition, t he document contains the following paragraph
concerning its duration:

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I understand that this consent shall expire 60 days after
it is given or when there is a subst antial change in my status,
whichever is later. . . . If I have been sentenced at the time
consent is given, a substantial change in my status occurs when
the sentence has been fully executed.

Finally, the document contains the following paragraph concer ning whether consent is
revocable:
I understand that since my participation in the Alpha
program has been made a condition of release from
confinement, the disposition or status of a criminal proceeding
against me, or the execution or suspension of a sente nce
imposed upon me, federal law (42 C.F.R. § 2.39[1]) prohibits
me from revoking this consent until there has been a formal
and effective termination or revocation of my release from
confinement, probation or parole.

In October 2017, Christopherson gave Alpha a handwritten note, which stated:

1Because there is no such regulation in the current version of the Code of Federal
Regulations, the district court referred to this citation as a “typographical error.” We note,
however, that such a regulation existed before August 10, 1987. See Confidentiality of
Alcohol and Drug Abuse Patient Records, 52 Fed. Reg. 21796, 21811 (June 9, 1987). The
regulation provided, in part:
An individual whose release from confinement,
probation, or parole is conditioned upon his participation in a
treatment program may not revoke a consent given by him in
accordance with paragraph (a) of this section until there has
been a formal and effective termination or revocation of such
release from confinement, probation, or parole.
42 C.F.R. § 2.39(c) (1986). On August 10, 1987, section 2.39 was deleted , and much of
its content was transferred to a different section, which now provides, in part:
The written consent must state that it is revocable upon
the passage of a specified amount of time or the occurrence of
a specified, ascertainable event. The time or occurrence upon
which consent becomes revocable may be no later than the
final disposition of the conditional release or other action in
connection with which consent was given.
42 C.F.R. § 2.35(c) (2018); see also Confidentiality of Alcohol and Drug Abuse Pat ient
Records, 52 Fed. Reg. at 21811.

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I, Christopher Christopherson, am retracting all release
of information. Beginning today 10/26/17 at 2:15 pm. All
communication to end as well. Except, for insurance and
billing purposes, until processing is com plete or 30 days from
today 10/26/17. (This will be effective 10/26/17 at 2:15 pm.)

Thereafter Christopherson sought and received treatment from another provider.
In November 2017, Alpha released information concerning Christopherson’s
treatment to his assigned probation officer. Based on that release of information,
Christopherson commenced this action against Alpha in March 2018. His complaint
alleges one claim of a violation of the Minnesota Health Records Act , Minn. Stat.
§§ 144.291-.34 (2018).
Within the time allowed for answering the complaint , Alpha moved to dismiss the
complaint for failure to state a claim upon which relief can be granted . See Minn. R.
Civ. P. 12.02(e). In July 2018, the district court conducted a hear ing on the motion . In
September 2018, the district court issued an order in which it converted Alpha’s motion to
dismiss into a motion for summary judgment . See Minn. R. Civ. P. 12.02 . The district
court ordered the parties to submit evidence concerning Christopherson’s probation officer
and whether Alpha was served with the complaint. The district court also instructed the
parties to identify “whether there is any other genui ne issue of material fact relating to
Plaintiff’s claim. ” Christopherson filed an affidavit wi th exhibits, and Alpha filed an
affidavit with exhibits and a supplemental memorandum of law.
In November 2018, t he district court granted Alpha ’s motion . Christopherson
appeals.

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D E C I S I O N
Christopherson argues that the district court erred by gra nting Alpha’s motion for
summary judgment.
A district court must grant a motion for summary judgment “if the movant shows
that there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law. ” Minn. R. Civ. P. 5 6.01. A genuine issue of material fact exists if a
rational trier of fact, considering the record as a whole, could find for the nonmoving party.
Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court applies
a de novo standard of review to the district court’s legal conclusions on summary judgment
and views the evidence in the light most favorable to the party against whom summary
judgment was granted. Commerce Bank v. West Bend Mut. Ins. Co., 870 N.W.2d 770, 773
(Minn. 2015).
The Minnesota Health Records Act governs the release of a patient’s health-related
records by a health -care provider . See Minn. Stat. § 144.293, subd. 1 (20 18); see also
Larson v. Northwestern Mut. Life Ins. Co., 855 N.W.2d 293, 301-02 (Minn. 2014); Expose
v. Thad Wil derson & Assocs ., P.A. , 863 N.W.2d 95, 102-03 (Minn. App. 2015), aff’d,
889 N.W.2d 279 (Minn. 2016). The act protects the privacy of a patient ’s health-related
records by limiting the circumstances in which a health -care provider may release health-
related records:
A provider . . . may not release a patient’s health records
to a person without:

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(1) a signed and dated consent from the patient or the
patient’s legally authorized representative authorizing the
release;

(2) specific authorization in law; or

(3) a representation from a provider that holds a
signed and dated consent from the patient authorizing the
release.

Minn. Stat. § 144.293, subd. 2. A patient’s consent “is valid for one year or for a period
specified in the consent or for a different period provided by law.” Id., subd. 4.
In this case, it is undisputed that Alpha released Christopherson’s health records to
Christopherson’s assigned probation officer in November 2017. The question on appeal is
whether Alpha was authorized to release Christopherson’s health records because of the
consent form that he signed in August 2015 or, on the other hand, whether Alpha was not
authorized to do so because of his subsequent handwritten note expressing his intention to
revoke his consent.
In the district court, the parties approached this issue in various ways. In its initial
memorandum of law, Alpha argued that Christopher son consented to the release of his
health records and that he was precluded by both state and federa l law from withdrawing
his consent. Alpha relied in part on a federal regulation that provides that consent may not
be revoked until “the final disposition of the conditional release or other action in
connection with which consent was given. ” See 42 C.F.R. § 2.35(c). In opposition,
Christopherson argued that section 144.293, subdivision 4, of the Minnesota Statutes does
not prevent him from revoking his consent, that his consent expired one year after it was
given, that his sentence was “fully ex ecuted” on the day that he was sentenced, and that a

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federal regulation allows him to revoke his consent at any time . In reply, Alpha argued
that Christopherson could not revoke his consent because there was no “substantial
change” in his “status.”
In gra nting Alpha’s summary-judgment motion, the district court noted that the
health-records act does not expressly state that a patient’s consent is either revocable or
irrevocable. The district court reasoned that, “by omitting a revocability provision . . . , the
Legislature did not intend to restrict the revocability or irrevocability of . . . consent
agreements.” The district court next reasoned that, in light of the statutory provision that
the duration of a patient’s consent may be fixed for “a period specified in the consent,” see
Minn. Stat. § 144.293, subd. 4, Christopherson’s consent is “valid . . . for the duration of
the period for which consent is made irrevocable under the consent agreement. ” The
district court concluded that the consent form makes Christopherson’s consent irrevocable
until he has served all of his term of conditional release.
On appeal, Christopherson makes two arguments. First, he argues that the district
court erred by stating that a patient’s consent “once given, cannot be withdrawn, but can
only expire” and that his consent must be deemed revocable “unless the statute expressly
says that it is irrevocable.” This argument does not accurately describe the district court’s
order. The district court did not say categorically that a patient ’s consent may not be
withdrawn or revoked. Rather, the district court stated that the revocability or
irrevocability of a patient’s consent is determined by the terms of the written consent form
signed by the patient. The district court relied on the statutory provision that states that a
patient’s consent is valid for “a period specified in the consent,” see Minn. Stat. § 144.293,

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subd. 4, and reasoned that the statutory period includes “a period during which the consent
of a patient is made irrevocable by the agreement.” In essence, the district court reasoned
that Christopherson’s consent could not be revoked because the consent form that he signed
specified that consent could not be revoked until the occurrence of one of the events
described in the form. The district court’s reasoning reflects a proper interpretation of the
applicable statute and the consent form.
Christopherson relies on Brekke v. THM Biomedical, Inc., 683 N.W.2d 771 (Minn.
2004), for the proposition that it is “presumed that statutes are consistent with the common
law” and that a statute may abrogate the common law only “by express w ording or
necessary implication.” Id. at 776. In Brekke, the supreme court held that section 181.79
of the Minnesota Statutes, which creates a cause of action in favor of an employee against
an employer that failed to pay earned wages, did not supersede or abrogate the employer’s
equitable defenses of waiver and estoppel. 683 N.W.2d at 775 -77. Brekke is
distinguishable because the statute at issue in that case made no reference whatsoever to
the concepts of waiver or estoppel. Id. at 775. In this case, however, the health-records
act governs the revocability of a patient’s consent by providing that a patient’s consent is
valid “for a period specified in the consent .” Minn. Stat. § 144.293, subd. 4. The district
court interpreted that part of the act to govern the revocability of a patient ’s consent, and
Christopherson has not challenged the district court’s reasoning on that point. In any event,
even if we were to apply the quoted passage of Brekke, we would conclude that section
144.293, subdivision 4, has superseded or abrogated the common law concerning the

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revocability of consent, if not “by express wording,” then by “necessary implication.” See
683 N.W.2d at 776.
Second, Christopherson argues that, if it was proper for the district court to look to
the signed consent form to determine whether his consent is revocable, the district court
erred by enforcing the consent f orm rather than deeming it unenforceable on the ground
that his consent was “gratuitous.” This argument is based on the legal premise that, if a
person gives consent gratuitously, the consent is ineffective because it is not supported by
consideration. For this premise, Christopherson cites Baehr v. Penn -O-Tex Oil Corp.,
104 N.W.2d 661 (Minn. 1960), as well as two unpublished opinions of this court and one
opinion from another jurisdiction.
Christopherson did not make this argument to the district court . Indeed, in the
district court, he did not challenge the enforceability of his consent in any way. Rather, he
assumed that his consent is valid and enforceable and argued that it is nonetheless
revocable and was revoked. Because he made no argument to the district court concerning
whether his consent was gratuitous, he presented no evidence on that issue. Consequently,
the district court did not consider the issue. Because Christopherson did not preserve this
argument by presenting it to the district court , we will not consider it for the first time on
appeal. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988); Doe 175 v. Columbia
Heights Sch. Dist., 842 N.W.2d 38, 42 (Minn. App. 2014).

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In sum , the district court did not err by reasoning that Christopherson’s written
consent is irrevocable until he has completed his term of conditional release. Accordingly,
the district court did not err by granting Alpha’s motion for summary judgment.
Affirmed.