United States District Court, D. North Dakota
The Families Advocate, LLC, an Arizona Limited Liability Corporation, as Conservator of D.M., a minor, and Sarina Bonno and Julian Moreno, individually, Plaintiffs,
Sanford Clinic North d/b/a Sanford Clinic Jamestown, Sarah Schatz, M.D., and Lutheran Charity Association d/b/a Jamestown Regional Medical Center, Defendants.
REPORT AND RECOMMENDATION ON MOTIONS FOR PARTIAL
R. Senechal United States Magistrate Judge.
action alleges medical malpractice surrounding the
[XXXXX ] 2014 birth of D.M.
Plaintiffs are D.M.'s conservator-The Families Advocate,
LLC-and D.M.'s parents-Sarina Bonno and Julian Moreno.
Defendants are (1) Sarah Schatz, M.D., the attending
physician at D.M.'s birth; (2) Sanford Clinic North
d/b/a/ Sanford Clinic Jamestown, Dr. Schatz's employer;
and (3) Lutheran Charity Association d/b/a Jamestown Regional
Medical Center (JRMC), the hospital at which D.M. was born
and which employs various healthcare providers involved in
the care of D.M. and his mother. Plaintiffs contend D.M.
suffered permanent and profound neurological injury as a
result of defendants' negligence. Defendants deny all
claims of negligence.
Sanford defendants move for partial summary judgment,
alleging (1) all claims of D.M.'s parents-including
claims for D.M.'s pre-majority medical expenses-are
barred by the applicable statute of limitations and (2)
claims seeking damages for D.M.'s siblings are not
recognized under North Dakota law. (Doc. 54). JRMC joins in
the motion of the Sanford defendants. (Doc. 62).
parents' claims for damages, as alleged in the complaint,
include (1) D.M.'s past and future medical expenses; (2)
the parents' past and future lost income, lost support,
and lost employment opportunities; and (3) the parents'
past and future loss of services and companionship of D.M.
(Doc. 1, pp. 10-11). The complaint does not name D.M.'s
siblings as parties, but reports of plaintiffs' expert
economist include valuation of damages for the siblings'
loss of “household/family accompaniment services,
” (Doc. 56-2, pp. 6-7), and valuation of damages for
the siblings' loss of D.M.'s “society or
relationship, ” (Doc. 56-1, p. 5).
assert genuine issues of material fact concerning when the
claims of D.M.'s parents accrued. As to claims of
D.M.'s siblings, plaintiffs argue the jury should be
permitted to hear the expert testimony regarding the impact
of D.M.'s injuries on his entire family, including his
siblings, (Doc. 67, pp. 16-17), but concede the siblings are
not entitled to any award of damages.
Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.”
Arena Holdings Charitable, LLC v. Harman Prof'l,
Inc., 785 F.3d 292, 293 (8th Cir. 2015) (quoting
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). When the record as a whole at the
time of the motion “could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine
issue for trial” and summary judgment is appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
opposing summary judgment “may not rest upon mere
denials or allegations, but must instead set forth specific
facts sufficient to raise a genuine issue for trial.”
Wood v. SatCom Mktg., LLC, 705 F.3d 823, 828 (8th
Cir. 2013) (quoting Wingate v. Gage Cty. Sch. Dist. No.
34, 528 F.3d 1074, 1078-79 (8th Cir. 2008)). Evidence
must exist on which the jury could find for the plaintiff.
Id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). In ruling on a summary
judgment motion, a court must view the facts “in the
light most favorable to the non-moving party.”
Id. (quoting Torgerson, 643 F.3d at 1042).
Federal Rule of Civil Procedure 56(c)(1)(A) requires
“citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, . . .
admissions, interrogatory answers, or other materials”
to support factual assertions either for or against a motion
for summary judgment.
statute of limitations in a civil proceeding is an
affirmative defense. D.E. v. K.F., 825 N.W.2d 832,
835 (N.D. 2012). A party relying on the statute of
limitations has the burden of proving the action is barred.
court's jurisdiction is based on diversity of
citizenship, so North Dakota law governs. Under North Dakota
Century Code section 28-01-18(3), medical malpractice claims
must be commenced within two years after a claim has accrued.
The North Dakota Supreme Court has adopted a discovery rule
in professional malpractice claims-holding a claim accrues
when a plaintiff is put on notice of a potential claim.
Schanilec v. Grand Forks Clinic, Ltd., 599 N.W.2d
253, 255 (N.D. 1999).
Federal Rule of Civil Procedure 3 provides that a federal
action is commenced by filing a complaint with the court,
under the Erie doctrine, state rather than federal
rules govern the commencement of a federal diversity action.
State commencement rules are considered “part and
parcel of the statute of limitations.” Larsen v.
Mayo Med. Ctr., 218 F.3d 863, 867 (8th Cir. 2000)
(quoting Walker v. Armco Steel Corp., 446 U.S. 740,
752 (1980)). North Dakota commencement rules provide that
“[a] civil action is commenced by the service of a
summons.” N.D.R. Civ. Pro. 3.
docket shows plaintiffs filed the complaint in this court on
May 13, 2016, and the clerk issued summonses to all
defendants that same day. (Doc. 1; Doc. 4). Plaintiffs
initiated the waiver of service process of Federal Rule of
Civil Procedure 4(d). The Sanford defendants signed the
waivers of service on June 22, 2016, (Doc. 11; Doc. 12), and
a JRMC representative signed a waiver of service on June 23,
2016, (Doc. 15). Thus, applying North Dakota's Rule 3,
this action was commenced when defendants signed the waivers
of service on June 22 and 23, 2016. Plaintiffs do not
question the dates of service of the summonses, (Doc. 67, p.
9), and do not challenge that those dates determine
commencement of the action.
assert the claims of D.M.'s parents accrued on the date
of his birth- [XXXXX ] 2014-and
assert the statute of limitations on their claims expired on
[XXXXX ] 2016, some [XXXXX ] days before service of the summonses.
Plaintiffs contend the parents' claims did not accrue
until August 2015, when they first became aware that
D.M.'s cerebral palsy could be the result of
defendants' negligence. Both sides support their
positions with deposition testimony, and plaintiffs also
submitted affidavits of D.M.'s parents.
and Deposition Testimony Concerning Notice of Potential
was transferred via air ambulance from JRMC to Sanford
Hospital, Fargo, North Dakota, several hours after his birth
and was admitted to Sanford's neonatal intensive care
unit (NICU). Defendants contend that Bonno and Moreno knew
“all of the facts that would have put a reasonable
person on notice” of a potential malpractice claim on
that day. (Doc. 74, p. 5). As to Bonno, defendants assert the
following facts support their position: (1) her deposition
testimony that there “should have been an
emergency” because of presence of meconium when her
water broke; (2) her deposition admission that she had
concerns about her labor because her water was not clear; (3)
when Dr. Schatz came in, grabbed D.M. and lifted him up,
Bonno saw that he was limp, purple, and not crying; (4) she
saw healthcare providers “hand-pumping” D.M. with
oxygen while in the delivery room; (5) a Code Blue was
called; (6) Bonno and Moreno both had concerns about the
labor and delivery after D.M. was delivered and was not
breathing; and (7) she knew D.M. had an EEG scan and
questionable seizures when he was less than a week old.
Id. at 6 (citing to Bonno's deposition
testimony). As to meconium staining, the court notes
Bonno's deposition testimony that one of the JRMC nurses
told her meconium staining was normal. (Doc. 67-3, pp. 68-69,
134). Additionally, Bonno testified someone in the delivery
room told her D.M. “was going to be okay.”
Id. at 74.
assert Moreno was on notice of a potential malpractice claim
based on his deposition testimony that: (1) D.M. was purple,
limp, and looked “practically dead, ” when he was
born; (2) he had many concerns about D.M.'s condition
immediately after his delivery; (3) he and Bonno discussed
their concerns about the labor and delivery at the time,
including why D.M. had not been breathing; (4) while D.M. was
still in the delivery room, Moreno was told D.M. had to be
“on a machine, ” would be transferred to Sanford
via helicopter, and would be admitted to the infant intensive
care unit; (5) Moreno went to Sanford in Fargo immediately
and had discussions with Sanford doctors and nurses about
D.M. not breathing and the machine they would put him on; (6)
a Sanford doctor told him that an MRI showed “some
damage”; and (7) he was told the cause of D.M.'s
problems was “loss of air.” (Doc. 74, pp. 6-7)
(citing Moreno deposition testimony).
identify other deposition testimony as demonstrating genuine
issues of material fact. Both Bonno and Moreno testified that
no health care providers had ever told them any of the
defendants did anything wrong. (Doc. 67-3, pp. 109, 171; Doc.
67-4, p. 26). Bonno testified she returned to JRMC with D.M.
after his discharge from Sanford, thanked the nurses who had
provided care during labor and delivery, and took photos of
D.M. with the JRMC nurses. (Doc. 67-3, pp. 142-43). Her
testimony in that regard was corroborated by deposition
testimony of a JRMC nurse, who recalled the event to have
occurred when D.M. was approximately eight weeks old and the
family was planning to move from North Dakota to Arizona.
(Doc. 67-5, p. 140).
their affidavits, Bonno and Moreno stated they first knew
that D.M.'s injuries could be the result of medical
negligence after Bonno saw an August 2015 television
commercial for their counsel's law firm. Bonno's
affidavit testimony is that after seeing the commercial,
which described birth injuries causing cerebral palsy, she
called the phone number given on the commercial on August 26
or 27, 2015, and first learned D.M.'s injuries could be
the result of medical negligence in a subsequent phone
conversation with attorney Lisa B. Weinstein. Moreno's
affidavit states that the first discussion he and Bonno had
about D.M.'s injuries possibly resulting from
defendants' negligence was sometime after Bonno's
call with the law firm. (Doc. 67-1; Doc. 67-2). Both Bonno
and Moreno testified that, prior to August 2015, no medical
professional had ever told them that D.M.'s injuries were
the result of medical negligence. (Doc. 67-3, pp. 109, 171;
Doc. 67-4, p. 26). Bonno and Moreno assert neither of them
had any knowledge that D.M.'s medical conditions might
have resulted from negligence during the labor and delivery
prior to Bonno's conversation with attorney Weinstein.
Dakota Century Code section 28-01-18 provides:
The following actions must be commenced within two years
after the claim for relief has accrued:
3. An action for the recovery of damages resulting from
malpractice; provided, however, that the limitation of an
action against a physician or licensed hospital will not be
extended beyond six years of the act or omission of alleged
malpractice by a nondiscovery thereof unless discovery was
prevented by the fraudulent conduct of the physician or
licensed hospital. This limitation is subject to the
provisions of section 28-01-25.
statute itself is silent on when a medical malpractice action
accrues. The North Dakota Supreme Court has held an action
accrues “when the plaintiff knows, or with reasonable
diligence should know, of (1) the injury, (2) its cause, and
(3) the defendant's possible negligence.”
Schanilec, 599 N.W.2d at 255. Further, the court has
stated that knowledge is “an objective standard which
focuses upon whether the plaintiff has been apprised of facts
which would place a reasonable person on notice that a
potential claim exists.” Zettel v. Licht, 518
N.W.2d 214, 215 (N.D. 1994). To have the requisite knowledge,
a plaintiff need not be “subjectively convinced”
that an injury was caused by a defendant's negligence.
Long v. Jaszczak, 688 N.W.2d 173, 176 (N.D. 2004).
The state supreme court has also held that when a malpractice
plaintiff “knows or with reasonable diligence should
know” is typically a question of fact inappropriate for
summary judgment, unless reasonable minds can draw but one
conclusion. Froysland v. Altenberg, 439 N.W.2d 797,
799 (N.D. 1989).
D.M.'s claims were tolled for twelve years because of his
minority, North Dakota's statutory tolling of a statute
of limitations during minority does not apply to the
parents' claims. B.D.H. ex rel. S.K.L. v.
Mickelson, 792 N.W.2d 169, 173 (N.D. 2010). In
B.D.H., the court held that North Dakota law did not
permit a “wrongful life” claim against physicians
who had not diagnosed a chromosomal abnormality during
pregnancy and further held that North Dakota Century Code
section 28-01-25, the tolling statute, did not apply to the
parents' asserted wrongful birth claim. Besette v.
Enderlin School District, which extended the time for a
minor's claim under North Dakota's political
subdivision liability law, held the tolling statute did not
operate to extend the time for the minor's father to file
a claim. 288 N.W.2d 67, 75 (N.D. 1980). Although their claims
for loss of parental consortium derive from D.M.'s
injury, those claims are distinct from D.M.'s claims.
Sime v. Tvenge Assocs. Architects & Planners,
P.C., 488 N.W.2d 606, 610 (N.D. 1992).
do not assert the case was commenced before June 22 and 23,
2016. Nor do plaintiffs assert the parents' claims are
subject to the tolling statute. Their opposition to the
motion is based solely on an asserted factual dispute as to
when the parents' claims accrued.
Cases Interpreting North Dakota Century Code Section
North Dakota Supreme Court has not addressed accrual of a
birth injury malpractice claim but has decided several cases
discussing when a plaintiff is considered to have the
requisite knowledge of a potential medical malpractice claim
in other factual contexts. The state supreme court first
adopted the discovery rule in Iverson v. Lancaster,
158 N.W.2d 507 (N.D. 1968). There, the plaintiff alleged the
cause of her hypertension had not been properly diagnosed.
She had been advised that, because of the hypertension, she
should not become pregnant and should have a tuboligation.
She had that surgery in 1959. In 1962, the cause of her
hypertension was properly diagnosed and surgically corrected.
The court held the claim had not accrued until she learned
the actual cause of her hypertension. Id. at 512.
v. Shook involved a plaintiff who in 1975 had received
radiation therapy to treat uterine cancer. 333 N.W.2d 708
(N.D. 1983). In 1981, she commenced an action alleging the
therapy had been negligently provided, asserting she had not
discovered the physician's possible negligence until
1980. Reversing the trial court's grant of summary
judgment for the defendants, the North Dakota Supreme Court
stated there was a genuine issue of material fact
“concerning the knowledge Anderson had, or in the
exercise of reasonable diligence should have had, regarding
Dr. Shook's alleged negligence.” Id. at
710. The court stated, “Unless the
‘physician's activity constitutes a blunder so
egregious that a layman is capable of comprehending its
enormity,' the injustice of barring a plaintiff's
claim before she reasonably could be aware of it is
obvious.” Id. at 712 (quoting Winkjer v.
Herr, 277 N.W.2d 579, 585 (N.D. 1979)).
his 1983 open heart surgery, the plaintiff in
Froysland experienced pain and numbness in his right
arm and hand resulting from compression of the ulnar nerve
during surgery. 439 N.W.2d at 797. His surgeon had advised
him of that possible complication prior to surgery but had
told him those symptoms usually resolved within a couple of
months. The plaintiff's symptoms persisted, leading to a
1985 surgery on his right arm. In 1986, he commenced an
action against the surgeon who performed the open heart
surgery in 1983; that claim was dismissed as barred by the
statute of limitations. Also in 1986, he commenced a claim
against the anesthesiologist involved in his 1983 surgery,
asserting he had not known the anesthesiologist was
responsible for padding and protecting his arm during surgery
until his attorney discussed his case with a medical
consultant. The court held that the plaintiff knew his arm
injury was related to his heart surgery by early September
1984 when he requested financial assistance from the hospital
at which the surgery had been performed. “At that
point, he knew of the injury, of its cause, and of the
possible negligence; he had only to identify all who were
involved in the operation. He had ample time to do so within
two years thereafter.” Id. at 798. The
plaintiff further argued that a continuous treatment rule
should toll the statute of limitations against the
anesthesiologist, who had been involved in both his heart
surgery and his arm surgery. The North Dakota Supreme Court
decreed that, if it were to adopt a continuous treatment
rule, it would not have applied in those circumstances
because the alleged act of negligence during the heart
surgery was an event distinct from the arm surgery.
Id. at 801.
v. Schmid Laboratories, Inc. included a medical
malpractice claim against a physician who had implanted, and
later removed, the plaintiff's intrauterine contraceptive
device. 451 N.W.2d 133 (N.D. 1990). When he removed the IUD,
the physician noted an ovarian cyst and advised the plaintiff
it might need to be removed. She consented to exploratory
surgery, with possible removal of the cyst. During a 1974
surgery, the physician removed both the plaintiff's
ovaries, both her fallopian tubes, and her uterus. In 1986,
the plaintiff commenced an action against the physician and
the IUD manufacturer, apparently alleging that the physician
had not properly diagnosed an ectopic pregnancy, that the
extensive surgery had not been necessary, and that the
physician had fraudulently ...