Joan D. Johnson, as personal representative of the Estate of Herman B. Johnson, deceased and Marguerite J. Johnson, by and through her attorney in fact, Joan D. Johnson, Plaintiffs and Appellants
Mid Dakota Clinic, P.C., Defendant and Appellee
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.
William P. Zuger, Tampa, Florida, for plaintiffs and appellants.
Michael C. Waller, Bismarck, N.D., for defendant and appellee.
Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice.
Dale V. Sandstrom, Justice.
[¶1] Joan Johnson, as personal representative of the Estate of Herman B. Johnson, deceased, and Marguerite Johnson, Herman Johnson's widow, appeal from a district court summary judgment dismissing their action against Mid Dakota Clinic. Because the Johnsons failed to present sufficient evidence to raise genuine issues of material fact precluding summary judgment, we affirm the judgment.
[¶2] On the morning of December 18, 2012, Herman Johnson experienced confusion and swelling of his legs and calves. That morning, Joan Johnson, Herman Johnson's daughter and attorney-in-fact, called the Veteran's Administration Clinic (" VA Clinic" ) to schedule an appointment for Herman Johnson, but the VA Clinic did not return her call. As a result, Joan Johnson called Mid Dakota to schedule an appointment. Although she had requested a specific doctor, she was advised she would not be able to see him that day and was given an appointment with Donald Grenz, M.D., later that afternoon.
[¶3] Upon arriving at Mid Dakota Clinic at Gateway Mall, Joan and Herman Johnson checked in with the receptionist approximately seven minutes late for Herman Johnson's appointment. Because they were more than five minutes late, they were told Dr. Grenz would not see them but they could reschedule with Dr. Grenz for another day or go to the emergency room or the " Today Clinic," a walk-in clinic within Mid Dakota's main clinic downtown. Joan and Herman Johnson subsequently left the clinic to seek alternative care. Upon entering the east vestibule of the Gateway Mall, Joan Johnson decided to seek the assistance of the VA Clinic, which was located in the mall immediately adjacent to Mid Dakota. As Joan and Herman Johnson turned to re-enter the mall, Herman Johnson fell and hit his head on the floor of the vestibule. As a result, he suffered a laceration along his forehead. Joan Johnson then returned to Mid Dakota and announced that Herman Johnson had fallen and was injured. A registered nurse employed by Mid Dakota assisted Herman Johnson until he was taken by ambulance to St. Alexius Medical Center and was admitted for observation. While Herman Johnson was hospitalized, he suffered two episodes of respiratory arrest, and he died on December 27, 2012.
[¶4] Joan Johnson, as personal representative of Herman Johnson's Estate and attorney in fact of Marguerite Johnson, sued Mid Dakota, alleging breach of contract, negligence, and professional negligence. The Johnsons specifically argued: (1) Mid Dakota breached its contract with Herman Johnson; (2) Mid Dakota's acts and omissions were negligent and proximately caused the damages suffered by Herman Johnson; and (3) Mid Dakota committed professional negligence by failing to meet the generally accepted standards for medical care and treatment.
[¶5] Mid Dakota responded to the Johnsons' amended complaint by moving for summary judgment. Mid Dakota argued, scheduling an appointment with a physician does not establish a legal duty to treat the patient, does not establish a physician-patient relationship necessary to maintain a medical malpractice claim, and does not constitute a contract. Mid Dakota argued that because there ...