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The Families Advocate, LLC v. Sanford Clinic North

United States District Court, D. North Dakota, Eastern Division

April 7, 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



         Currently before the Court is the Report and Recommendation (“R&R”) (Doc. 127) of the Honorable Alice R. Senechal, United States Magistrate Judge for the District of North Dakota, filed in this case on January 31, 2019, concerning a Motion for Partial Summary Judgment (Doc. 54) filed by Defendants Sanford Clinic North d/b/a Sanford Clinic Jamestown and Sarah Schatz, M.D. (“the Sanford Defendants”). Defendant Lutheran Charity Association d/b/a Jamestown Regional Medical Center (“JRMC”) joined in the Motion of the Sanford Defendants. See Doc. 62.

         Defendants contend that the claims of D.M.'s parents, Sarina Bonno and Julian Moreno (“the Parents”), including a claim for D.M.'s pre-majority-age medical expenses, are barred by the statute of limitations, and that the damages they purport to seek for D.M.'s siblings are not recognized under North Dakota law. Plaintiffs respond that summary judgment is not proper because there remain genuine issues of material fact as to when the Parents' claims accrued. As to the siblings' claims, Plaintiffs agree they are not entitled to such damages, but they think the jury should be permitted to hear expert testimony concerning how D.M.'s injuries have impacted the entire family, including the siblings.

         The Magistrate Judge recommends denying the motions with respect to the statute of limitations issue, but granting the motions with respect to the siblings' claim for damages (to the extent the siblings make such a claim). If, however, the Court rejects the first recommendation, then Judge Senechal recommends that D.M. nevertheless be allowed to pursue recovery of pre-majority-age medical expenses in his own right.

         The Sanford and JRMC Defendants filed timely objections to the R&R on February 14th (Docs. 137 and 138). Plaintiffs responded to the objections on February 22nd (Doc. 139). Defendants then filed separate replies on February 26th (Docs. 142, 143). Now that the matter is ripe, the Court has conducted a de novo review as to all proposed findings and recommendations to which Defendants have raised specific objections. See 28 U.S.C. § 636(b)(1). As explained below, the R&R is ADOPTED IN FULL.[1]


         Though the R&R recites the relevant facts at issue on summary judgment, a brief recap will give context to the Court's discussion of the Defendants' objections.[2] The following dates and facts are drawn from the R&R, which in turn drew them from the affidavits and deposition transcripts submitted by the parties.[3]

May 19, 2014. D.M. was born vaginally. His mother testified that “the baby was not crying. He was limp, and he was purple. He didn't make one noise.” (Doc. 67-3 at 71). She knew D.M. was not breathing, and she witnessed the nurses “hand-pumping him with oxygen.” Id. at 73. D.M.'s father witnessed the same thing and confirms these facts in his own deposition. See Doc. 67-4 at 32-34.
May 19, 2014. D.M. was emergently transferred by helicopter from JRMC to the Neonatal Intensive Care Unit (“NICU”) at Sanford Hospital in Fargo.
Sometime between May 19-June 21, 2014 (Sanford Hospital, NICU). According to D.M.'s father, while D.M. was in the NICU, doctors told him that an MRI on D.M. revealed “there was some damages [sic] done.” (Doc. 67-4 at 39-40). The doctors told him the damage was caused by “loss of air.” Id. at 40. Beyond that, D.M.'s father does not remember being told any specifics about the MRI, nor does he remember having other discussions with doctors prior to D.M.'s discharge from Sanford Hospital. Id.
June 21, 2014. D.M. is discharged home from Sanford's NICU.
November 2014. About five months after D.M.'s discharge from Sanford, D.M.'s mother took D.M. back to JRMC to show him to some of the nurses who had been present during the delivery. (Doc. 67-4 at 142-43). She testified she took pictures with the nurses and thanked them for their work during D.M.'s birth. Id.
August of 2015. D.M.'s mother was watching television and saw a legal advertisement associating birth injuries with cerebral palsy. She called the telephone number listed in the commercial to consult with an attorney. Later, the Parents retained these attorneys to investigate whether D.M.'s injuries resulted from malpractice.
May 13, 2016. Plaintiffs filed their Complaint against the Defendants for medical malpractice.
June 22, 2016. Action commenced against Sanford Defendants.
June 23, 2016. Action commenced against JRMC.


         Defendants' motions for partial summary judgment contend that the Parents' claims, including those for D.M.'s pre-majority-age medical expenses, are barred by the two-year statute of limitations applicable under North Dakota law for medical malpractice. NDCC 28-01-18(3). More specifically, Defendants argue that the Parents' lawsuit was “commenced” about 35 days too late. The ultimate resolution of this issue hinges on when their cause of action is deemed to have accrued.

         In North Dakota, a cause of action for medical malpractice “generally accrues on the date the alleged act or omission occurred.” Schanilec v. Grand Forks Clinic, Ltd., 599 N.W.2d 253, 255 (N.D. 1999). However, “to balance the need for prompt assertion of claims against the policy favoring adjudication of claims on the merits and ensuring that a party with a valid claim will be given an opportunity to present it, ” North Dakota has attempted to “ameliorate the often harsh and unjust results of such a rigid rule” with the adoption of a “discovery rule.” Id.

         Under the discovery rule, the two-year limitations period for medical malpractice claims begins to run “when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant's possible negligence.” Id. at 255-56 (quotation and citation omitted). “To trigger the running of the statute of limitations, [a plaintiff] need not fully appreciate the potential liability or even be convinced of his injury; he need only know enough to be on notice of a potential claim.” Id. at 258. Pursuant to North Dakota law, knowledge of a potential claim means knowledge of the possible negligence of a defendant or defendants. Id. It is not necessary for a plaintiff to possess complete understanding of the full extent of the injury, or to be informed as to all the possible causes of the injury or all the possible claims that could be brought against every defendant in order to trigger the discovery rule. Instead, the rule is triggered when a plaintiff acquires “enough” information “to be on notice of a potential claim” for legal ...

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