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The Families Advocate, LLC v. Sanford Clinic North

United States District Court, D. North Dakota

January 31, 2019

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.


          Alice R. Senechal United States Magistrate Judge.

         This 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.

         The 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).

         The 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).

         Plaintiffs 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.

         Standard of Review

         Under 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).

         A party 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.

         A 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. Id.


         The 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).

         Though 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.

         The 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.

         Defendants 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.

         Affidavit and Deposition Testimony Concerning Notice of Potential Claim

         D.M. 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.

         Defendants 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).

         Plaintiffs 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).

         In 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.

         Law and Discussion

         North 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.[1]

         The 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).

         Though 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).

         Plaintiffs 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.

         1. Cases Interpreting North Dakota Century Code Section 28-01-18

         The 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.

         Anderson 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)).

         Following 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.

         Wheeler 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 ...

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