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B.D.H., By and Through His Parents, Next of Friends and Natural Legal Guardians v. Margaret T. Mickelson

December 7, 2010

B.D.H., BY AND THROUGH HIS PARENTS, NEXT OF FRIENDS AND NATURAL LEGAL GUARDIANS, S.K.L., AND C.S.H.; AND S.K.L. AND C.S.H., INDIVIDUALLY,
PLAINTIFFS AND APPELLANTS
v.
MARGARET T. MICKELSON, M.D., NATHANIEL L. KARLINS, M.D., MERITCARE HEALTH SYSTEM, A NORTH DAKOTA CORPORATION, AND MERITCARE HOSPITAL, A NORTH DAKOTA CORPORATION,
DEFENDANTS AND APPELLEES



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge. AFFIRMED.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme Court

B.D.H. v. Mickelson,

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as Word Perfect]

2010 ND 235

Opinion of the Court by Maring, Justice.

B.D.H. v. Mickelson No. 20100152

[¶1] B.D.H., by and through his parents, next of friends and natural legal guardians, S.K.L. and C.S.H., and S.K.L. and C.S.H., individually, ("plaintiffs") appeal from a summary judgment dismissing their malpractice action against Dr. Margaret Mickelson, Dr. Nathaniel Karlins, MeritCare Health System, and MeritCare Hospital ("doctors"). The plaintiffs argue B.D.H.'s wrongful life claim, which they define as an action by a child who claims he or she was born with impairments and would not have been born but for a doctor's negligent advice or treatment of the child's mother, is not barred by N.D.C.C. § 32-03-43. The plaintiffs also argue North Dakota law does not preclude the parents' wrongful birth claim, which they define as an action by parents who claim a doctor's negligent advice or treatment deprived the parents of the choice of terminating a pregnancy. We hold B.D.H.'s wrongful life claim is barred by the plain language of N.D.C.C. § 32-03-43, and even if S.K.L. and C.S.H. may have had a wrongful birth claim against the doctors under North Dakota law, the parents' claim is barred by the two-year statute of limitations for malpractice actions. We affirm.

I

[¶2] The plaintiffs served MeritCare Health System and Meritcare Hospital with a summons and complaint for medical malpractice on May 5, 2009, and served Mickelson and Karlins with the summons and complaint after May 5, 2009. The plaintiffs alleged the doctors provided medical care to S.K.L. during her pregnancy with B.D.H. and negligently failed to detect the presence of Trisomy 21, an abnormality consistent with Down Syndrome, in the unborn child. The plaintiffs further alleged that as a result of the doctors' negligence, S.K.L. and C.S.H. were deprived of their constitutional right to terminate S.K.L.'s pregnancy and were damaged as a result of the wrongful birth of B.D.H., a child born with Down Syndrome on April 12, 2007.

[¶3] The district court granted the doctors' motion for summary judgment, concluding B.D.H.'s wrongful life action, by and through his parents, was barred by N.D.C.C. § 32-03-43 and there was no North Dakota legislative authority recognizing the parents' wrongful birth action. The court alternatively concluded the parents' wrongful birth action was barred by the two-year statute of limitations for malpractice actions.

II

[¶4] "Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from the undisputed facts, or if the only issues to be resolved are questions of law." Wheeler v. Gardner, 2006 ND 24, ¶ 8, 708 N.W.2d 908. Summary judgment is appropriate if the issues in the case are such that resolution of any factual disputes will not alter the result. Tibert v. Slominski, 2005 ND 34, ¶ 8, 692 N.W.2d 133. Whether a district court properly granted summary judgment is a question of law that we review de novo on the entire record. Wheeler, at ¶ 8. The ...


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