United States District Court, D. North Dakota, Eastern Division
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
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, DISTRICT JUDGE.
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
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.
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
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
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. 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.
• 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
SUMMARY OF NORTH DAKOTA'S DISCOVERY RULE AND PRESENT
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.
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.
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 ...