Susan Carol Sohn, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0096

Susan Carol Sohn,
Appellant,

vs.

Dr. Paul Anthony Arbisi,
Respondent.

Filed July 17, 2023
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CV-22-5734

Susan Carol Sohn, Plymouth, Minnesota (pro se appellant)

Jessica J. Theisen, Cousineau, Van Bergen, McNee & Malone, P.A., Minnetonka,
Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Susan Carol Sohn appeals the dismissal of her multiple claims against
respondent Dr. Paul Anthony Arbisi arising out of his conduct during an independent
psychological examination. Because the district court did not err in its analysis, we affirm
its decision to dismiss Sohn’s statutory and common-law claims. Sohn also appeals the
2
district court’s denial of her motion to amend her complaint. Because Sohn’s motion to
amend was not timely, the district court did not abuse its discretion when denying the
motion. Accordingly, we affirm.
FACTS
Sohn filed a claim for workers’ compensation in 2017 because of incidents between
her and a coworker that caused her to quit her job as a critical care nurse. 1 Sohn was
diagnosed with post-traumatic stress disorder as a result of this experience. As part of her
workers’ compensation claim, Sohn completed an independent psychological examination
with Arbisi in April 2018. Arbisi released his report from the examination in May 2018,
opining that Sohn did not meet the criteria for a posttraumatic-stress-disorder diagnosis
and stating that Sohn’s behavior was consistent with depression, anxiety, and paranoia.
On March 28, 2022, Sohn sued Arbisi, alleging that his actions during the
psychological examination—including laughing at her, physically intimidating her, and
yelling at her—retraumatized her. In response, on April 19, 2022, Arbisi filed a motion to
dismiss, or in the alternative, for a more definite statement. Later that same day, Sohn
submitted a self-described motion of resistance to Arbisi’s motion to dismiss. Arbisi
obtained a hearing date of May 23, 2022, for his motion to dismiss.
On April 30, 2022, Sohn submitted a motion for leave to file an amended complaint.
But her motion was returned to her because the district court did not receive the filing fee.

1 These facts come from Sohn’s complaint. When reviewing a district court’s grant of a
motion to dismiss, we accept the facts alleged in the complaint as true. Sipe v. STS Mfg.,
Inc., 834 N.W.2d 683, 686 (Minn. 2013).
3
On May 10, 2022, Sohn’s motion for leave to file an amended complaint was filed, and she
received a May 26, 2022 hearing date.
At the May 23 hearing on Arbisi’s motion to dismiss, the district court granted
Arbisi’s motion. It also canceled Sohn’s May 26 hearing because it was on a motion filed
fewer than 21 days before the May 23 hearing. The district court thereafter issued a written
order granting Arbisi’s motion to dismiss and entered judgment on August 1, 2022. On
August 15, Sohn submitted a motion to amend the district court’s findings, which the
district court denied on August 31, 2022. Arbisi never sent Sohn notice of filing of the
district court’s order denying Sohn’s motion to amend findings.
On January 19, 2023, Sohn appealed from the resulting judgment dismissing her
claims.
DECISION
The district court dismissed Sohn’s complaint for failure to state a claim under
rule 12.02(e) of the Minnesota Rules of Civil Procedure. When reviewing a case dismissed
under rule 12.02(e), the question before this court is whether the complaint sets forth a
legally sufficient claim for relief. Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 229
(Minn. 2008) (citation omitted). Our review is de novo. Id.
Sohn appeals the dismissal of all of her claims 2 against Arbisi, which include
defamation, medical malpractice, two violations of the Minnesota Health Records Act (the

2 Sohn raises several arguments before this court for the first time in her reply brief,
including arguments on defamation, Minnesota Health Records Act violations, negligence,
intentional infliction of emotional distress, perjury, and HIPAA violations. Usually, we

4
Health Records Act), intentional and negligent infliction of emotional distress, perjury, and
violations of HIPAA and the Minnesota Board of Psychology’s rules of conduct. Sohn
also appeals the district court’s denial of her motion to submit an amended complaint. We
review the dismissal of each of Sohn’s claims in turn.3
I. Sohn’s defamation claim is barred by the two-year statute of limitations.

In her complaint, Sohn alleges that Arbisi defamed her by misrepresenting her
character, harming her reputation, and attacking her Christianity. The district court
dismissed Sohn’s defamation claim for three reasons: (1) it is time- barred by a two- year
statute of limitations, (2) per Minnesota caselaw, false statements in medical records do
not constitute defamation, and (3) each of the 27 allegedly defamatory statements would

would disregard these arguments because they were not raised in Sohn’s principal appellate
brief. Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010) (explaining
that in general, issues not raised or argued in appellant’s principal brief cannot be raised in
a reply brief). But given Sohn’s self-represented status, we nevertheless address those
arguments.
3 Arbisi argues that Sohn’s appeal is untimely because she did not file it until more than
60 days after the district court entered its order for judgment. But Sohn brought a motion
to amend findings under rule 52.02 of the Minnesota Rules of Civil Procedure, which tolls
her time to appeal. Minn. R. Civ. App. P. 104.01, subd. 2(b). Arbisi argues that Sohn
could not bring a motion under rule 52.02 because the district court did not issue findings
of fact that Sohn could appeal. But the Minnesota Supreme Court has held that the
determining factor for whether a postjudgment motion tolls a deadline is whether, on the
face of the document, the party has filed a motion that is expressly allowed under
rule 104.01, subdivision 2. Stern 1011 First St. S., LLC v. Gere, 979 N.W.2d 216, 223
(Minn. 2022). Sohn filed a motion allowed under rule 104.01, subdivision 2, tolling the
deadline for appeal. And Sohn has 60 days to file her appeal from “the service by any party
of notice of filing of the order” denying Sohn’s motion to amend findings. Minn. R. Civ.
App. P. 104.01, subd. 2. Because Arbisi never served any notice of the filing of the district
court’s order denying Sohn’s motion to amend findings, the 60-day period never started to
run. Her appeal is thus timely.
5
be covered by quasi-judicial immunity, which protects the statements of independent
medical examiners.
We need not address the second and third reasons for dismissal because the first is
dispositive. Defamation’s two-year statute of limitations begins to run when an allegedly
defamatory statement is first published. Minn. Stat. § 541.07, subd. 1 (2022);
McGovern v. Cargill, Inc., 463 N.W.2d 556, 558 (Minn. App. 1990) (“In Minnesota,
however, the statute of limitations for defamation begins to run on publication, not on
discovery.”). Arbisi’s report was issued on May 29, 2018, and Sohn did not initiate her
lawsuit until April 22, 2022. Because the date of Sohn’s complaint falls outside the
two-year period, Sohn’s defamation action is barred by the statute of limitations.
II. Sohn’s medical-malpractice claim fails because she was not in a
patient-physician relationship with Arbisi.

Sohn next asserts a medical -malpractice claim in her complaint, alleging that
Arbisi’s actions during the psychological examination retraumatized her and caused her
emotional damage, breaching his duty as a physician. The district court found that, because
an independent psychological examination does not create a patient-physician relationship,
Sohn could not state a claim for medical malpractice against Arbisi. In her appellate brief,
Sohn argues that, because Arbisi gave her treatment recommendations and diagnosed her
with paranoid delusions, he created a patient-physician relationship during the exam.
We disagree. We discern no fundamental difference between the psychological
examination here and the workers’ compensation examination in Henkemeyer v. Boxall,
where we stated that a physician who examined the appellant to determine his eligibility
6
for a workers’ compensation claim could not be held liable on a medical-malpractice claim
for failure to diagnose the presence of acute aneurysm, as no patient-physician relationship
existed on which to base such a claim. 465 N.W.2d 437, 439 (Minn. App. 1991),
rev. denied (Minn. Mar. 27, 1991). The Henkemeyer court explained that, in the absence
of a patient-physician relationship, a doctor’s only duty is to conduct the examination so
as to not cause harm to the patient. Id.
Sohn raises two arguments to attempt to distinguish this precedent. First, Sohn
posits that a patient -physician relationship is not always necessary to bring a
medical-malpractice claim, citing Warren v. Dinter, 926 N.W.2d 370, 375 (Minn. 2019).
But while it is true that the Minnesota Supreme Court held in that case that in the absence
of a patient-physician relationship, a duty can still exist when there is the foreseeability of
harm, Warren is distinguishable from the facts here. Warren, 926 N.W.2d at 379. In
Warren, the supreme court considered whether, absent any patient-physician relationship,
a hospitalist’s4 decision not to admit a prospective patient may constitute medical
malpractice. Id. at 372. Here, Arbisi was not a hospitalist tasked with whether to admit
Sohn, and the supreme court decided “only that hospitalists, when they make such hospital
admission decisions, have a duty to abide by the applicable standard of care.” Id. at 380.
Sohn’s claim is distinguishable from Warren.

4 A hospitalist is a kind of physician who pr ovides care for patients in the setting of a
hospital. Warren, 926 N.W.2d at 372 n.2.
7
Next, Sohn argues that Arbisi did give treatment recommendations in his report
because he misdiagnosed her with paranoid delusions and stated that she did not have
post-traumatic stress disorder. Specifically, his report stated:
Ms. Sohn should be followed by a psychiatrist who can address
residual anxiety and mood symptoms, particularly her fear of
fire, in addition to her fear that she will make a catastrophic
mistake, as well as her misperception of reality and belief that
she has been plotted against and that others would harm her.
In addition, contact with a doctoral level therapist, who is well
versed in cognitive behavioral therapy, particularly in the
context of individuals with delusional disorders, would be
appropriate.

But this statement was not provided as treatment. Rather, it was in response to a question
intended to inform Sohn’s workers’ compensation claim.
5 And this court has stated that
when a doctor examines an individual for discovery purposes only, not to give or
recommend treatment, no patient- physician relationship is established. Saari v. Litman,
486 N.W.2d 813, 815 (Minn. App. 1992). Accordingly, this single paragraph in a nearly
30-page report does not create a patient-physician relationship. Sohn’s
medical-malpractice claim fails.6

5 The question asked: “If the employee is in need of any further medical treatment for her
psychological condition at this time, what further medical care do you reco mmend for
her?”
6 Sohn maintains that, because Arbisi had a duty of care not to cause her injury during her
examination, to disclose significant findings in a reasonable manner, and to maintain
patient confidentiality, his breach of these duties supports a medical-malpractice claim.
And while it is true that a physician owes a duty of care to a third party when the physician
acts in a professional capacity and it is reasonably foreseeable that the third party will rely
on the physician’s acts and be harmed by a breach of the standard of care, it was not
reasonably foreseeable that Sohn would rely on Arbisi’s acts and be harmed because he
was not treating her, only examining her as part of her workers’ compensation claim.
Warren, 926 N.W.2d at 371.
8
III. Both of Sohn’s Health Records Act claims fail to state a claim upon which relief
can be granted.

Sohn alleges two violations of the Health Records Act. First, that Arbisi provided
her medical records to a third party without her consent, and second, that Arbisi would not
provide her with her own medical records when she requested them. The district court held
that the provision of the Health Records Act that prohibits the release of medical records
does not apply to independent medical examinations requested or paid for by third parties.
And it concluded that, because there is no private cause of action for underdisclosure of
medical records, Sohn cannot state a claim under the Health Records Act for Arbisi’s
alleged failure to provide her with her own medical records. On appeal, Sohn repeats the
same allegations. We address each argument in turn.
The Health Records Act regulates the use and disclosure of health records in
Minnesota. This act centers on two requirements: first, health care providers must, with
limited exceptions, obtain patient consent for the release of health records, and second,
health care providers generally must supply a patient with their health records within
30 days of a written request. Minn. Stat. §§ 144.292, subd. 2; .293, subds. 2, 5 (2022).
Violations of any of these requirements may be grounds for disciplinary action (taken by
the relevant licensing board or agency) against the provider. Minn. Stat. § 144.298, subd. 1
(2022). But enforcement does not end there. If a provider negligently or intentionally
releases a health recor d, alters a consent form, obtains consent under false pretenses, or
accesses patient information without authorization, a patient may recover compensatory
damages and attorney fees through a private cause of action. Id., subd. 2 (2022).
9
Here, Sohn alleges that Arbisi violated the Health Records Act when he disclosed
her health records to ExamWorks, a third party that works with employers to arrange
independent medical examinations for workers’ compensation cases. Sohn claims that she
was never told that her health records would be disclosed to ExamWorks, and it was not
written on the informed consent form that she signed.
While it is true that the informed consent form Sohn signed does not specifically
say that her health records will be disclosed to ExamWorks, the form did state that Arbisi
would “disclose his findings and opinions to [employer’s attorney] in the form of a written
report and through verbal communication.” And Arbisi stated in his report that, “Before
beginning the evaluation, it was explained to Ms. Sohn . . . [that] a copy of the reported
findings would be sent directly to ExamWorks.”
More fundamentally, Minnesota law states that, “Notwithstanding [the informed
consent provision of the Health Records Act] a provider may release health records created
as part of an independent medical examination to the third party who requested or paid for
the examination.” Minn. Stat. § 144.297 (2022). Sohn cites this provision herself in her
original complaint, seemingly in support of her second Health Records Act claim. This
provision bars Sohn’s claim.
Nor are we persuaded by Sohn’s claim that Arbisi violated the Health Records Act
by not giving her a copy of her written consent form when she requested it. Simply put,
the Health Records Act does not grant a private right of action for underdisclosure of health
records. Larson v. Nw. Mut. Life Ins. Co., 855 N.W.2d 293, 301-02 (Minn. 2014).
Underdisclosure occurs when a patient receives fewer medical records than requested.
10
Id. at 302. That is what occurred here. We further observe that Sohn eventually did receive
a copy of the informed consent form she asked for along with “a list of the locations where
[her] medical records came from.”
Because Arbisi permissibly released his report to ExamWorks and underdisclosure
of medical records is not actionable under the Health Records Act, the district court did not
err by dismissing Sohn’s Health Records Act claims.
IV. The district court did not err by dismissing Sohn’s emotional-distress claims.

Sohn further alleges claims for intentional infliction of emotional distress and
negligent infliction of emotional distress. We address each below.7
Intentional Infliction of Emotional Distress
A successful claim for intentional infliction of emotional distress must meet four
requirements: (1) the conduct must be extreme and outrageous; (2) the conduct must be
intentional or reckless; (3) the conduct must cause emotional distress; and (4) the distress
must be severe. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39
(Minn. 1983). The conduct Sohn alleges is not extreme or outrageous. By way of
comparison, we note that the Minnesota Supreme Court found that making false police

7 In her complaint, Sohn alleges that the same facts that give rise to her medical-malpractice
claim also result in a negligence claim for improper assessment and evaluation. The district
court dismissed Sohn’s negligence claim because it found that it was based on the same
factual allegations as her medical-malpractice claim, and this court has held that an attempt
to bring a negligence claim on the same facts as an unsuccessful medical-malpractice claim
is “unsustainable.” Henkemeyer, 465 N.W.2d at 440. On appeal, Sohn states that she never
brought a negligence claim, only a medical-malpractice claim. Therefore, the district court
did not err in dismissing Sohn’s negligence claim when Sohn herself does not allege that
she brought one.
11
reports about an individual, shouting at them, using vulgar language, and invading their
personal space do not rise to the level of outrage that is “utterly intolerable to the civilized
community.” Langeslag v. KYMN Inc., 664 N.W.2d 860, 866, 868 (Minn. 2003) (quoting
Hubbard, 330 N.W.2d at 439). Similarly, Sohn’s allegations— that Arbisi shouted at her,
laughed at her, and invaded her personal space—do not rise to the high level required for
an intentional-infliction-of-emotional-distress claim.
Negligent Infliction of Emotional Distress
Sohn further maintains that she experienced clear, objective fear when Arbisi
verbally and physically threatened her, which would place her in the zone-of-danger and
allow her to recover emotional -distress damages. This theory is similar to a
negligent-infliction-of-emotional-distress claim.
To recover damages for emotional distress when a defendant did not directly
physically injure a plaintiff, that plaintiff must have been in some personal physical danger
caused by the defendant’s negligence. See Stadler v. Cross, 295 N.W.2d 552, 553-54
(Minn. 1980). Here, Sohn must show that she was within a zone of danger of physical
impact, reasonably feared for her safety, and suffered severe emotional distress with
accompanying physical manifestations. Id. at 553. In other words, a plaintiff presents a
valid claim when she experiences a reasonable anxiety, with physical symptoms, “from
being in a situation where it was abundantly clear that plaintiff was in grave personal peril
for some specifically defined period of time. Fortune smiled and the imminent calamity
did not occur.” K.A.C. v. Benson, 527 N.W.2d 553, 558 (Minn. 1995). Due to concerns
12
about unintended and unreasonable results, Minnesota courts have deliberately limited the
zone of danger to the threat of personal physical danger. Id. at 559.
The facts alleged in Sohn’s complaint, taken as true, cannot meet the zone-of-danger
standard. Arbisi’s actions that Sohn alleges —that he yelled at her, laughed at her, and
physically intimidated her—do not come close to the conduct required to put Sohn in
“grave personal peril.” Id. at 558. Sohn alleges that she “went into complete panic and
flight mode” and was “re-traumatized” by Arbisi’s actions. But whether a plaintiff is
within a zone of danger is an objective inquiry, not a subjective inquiry. Id.
This case is distinguishable from cases in which Minnesota courts have found grave
personal peril sufficient to allow a plaintiff to recover damages for emotional distress. In
Okrina v. Midwestern Corp., the Minnesota Supreme Court allowed a plaintiff to recover
damages from resulting emotional distress she experienced after she was nearly crushed by
a collapsing wall but escaped without being physically struck by debris other than dust.
165 N.W.2d 259, 261 (Minn. 1969). And this court held that a plaintiff stated a prima facie
case for emotional -distress damages when an airplane he was a passenger in suddenly
rolled over and plunged downward for 40 seconds, the pilots regained control about five
seconds before it would have struck ground, and as a result, he now experiences anxiety,
adrenaline surges, and elevated blood pressure when he flies in airplanes. Quill v. Trans
World Airlines, Inc., 361 N.W.2d 438, 440 -41, 443 (Minn. App. 1985) , rev. denied
(Minn. Apr. 18, 1985). Because Sohn’s experience does not match the level of grave
13
personal peril of these experiences, her potential claim for negligent infliction of emotional
distress fails.8
V. The district court did not err by holding that Sohn’s amended complaint was
not filed within the 21-day filing deadline.

Finally, Sohn contends that the district court erred by not allowing her to amend her
complaint.9 The district court ruled that because its decision whether to grant leave to
amend a complaint is within its discretion and Sohn’s motion was filed within 21 days of
the hearing, she missed the deadline and could not amend her complaint. On appeal, Sohn
argues that she has the absolute right to amend her pleading once as a matter of course
before a responsive pleading has been served. But Sohn did not amend her pleading before
a responsive pleading—Arbisi’s motion to dismiss—was filed and served, and the right to
amend a pleading as a matter of course only applies “at any time before a responsive
pleading is served.” Minn. R. Civ. P. 15.01.

8 In her complaint, Sohn further alleges a cause of action for perjury, violation of HIPAA,
and violation of the Minnesota Board of Psychology’s rules of conduct. Because none of
these claims invoke a statute that grants a private right of action, the district court did not
err in dismis sing these claims. See, e.g., Becker v. Mayo Found., 737 N.W.2d 200, 209
(Minn. 2007) (explaining that Minnesota courts grant motions to dismiss when a claim is
premised upon a statute without an express or implied private cause of action).
9 Sohn also seems to allege that Arbisi’s motion to dismiss was filed late and therefore, the
district court should issue a default judgment in her favor. The district court held that
because Arbisi had 21 days from the date of the motion-to -dismiss hearing to serve his
motion to dismiss, he was within that timeframe. A motion to dismiss is a dispositive
motion under rule 115.01(a)(1) of the Minnesota Rules of General Practice that must be
served and filed at least 28 days before a hearing. Minn. R. Gen. Prac. 115.03 (a). Arbisi
filed and served a motion to dismiss on April 19 and an amended motion to dismiss on
April 25. The hearing on the motion to dismiss was on May 23. Because both the original
motion and the amended motion were filed at least 28 days before the hearing, they were
timely.
14
Additionally, as the district court determined, Sohn’s motion was untimely. Under
the Minnesota Rules of General Practice, a party may file a nondispositive motion, which
includes a motion to amend a pleading, at least 21 days before the hearing. Minn. R. Gen.
Prac. 115.04(a). Sohn filed her original complaint on March 28, 2022. Arbisi filed a
motion to dismiss Sohn’s complaint on April 19, 2022, and received a hearing date on that
motion of May 23. Sohn then submitted a motion for leave to file a n amended complaint
on April 30, but it was not filed until May 10. Because May 10 is not at least 21 days
before the May 23 hearing, Sohn’s motion to amend her complaint was not timely.10
In sum, because the district court did not err in its analysis, we affirm its decision to
dismiss Sohn’s claims. And because Sohn’s motion to amend was not timely, we affirm
the district court’s decision denying Sohn’s motion to amend.
Affirmed.

10 In her appellate brief, Sohn also requests us to direct the district court to address a
harassment claim she filed with the judicial branch against Arbisi. She requests that this
court “have a representative of the court review my report of harassment in my case per
the Minnesota Judicial Branch Policy and Minnesota Law of zero tolerance to violence.”
Sohn also appears to allege claims against Arbisi’s attorney for violating rules of
professional conduct. She states: “I have disclosed [Arbisi’s attorney’s] multiple false
statements, misrepresentation of the facts and laws which I have asked the Court of Appeals
to address with a referral to the Office of Lawyers Professional Responsibility as it has
negatively affected a fair judicial process.” While this court takes allegations of
harassment and professional misconduct seriously, Sohn has provided us with neither
statute nor caselaw that allows this court to grant her the relief that she seeks.