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McCarthy v. Getz

Supreme Court of North Dakota

July 11, 2019

Kelly McCarthy, Plaintiff, Appellant, and Cross-Appellee
Ariane Getz, PSYD, Defendant, Appellee, and Cross-Appellant

          Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Bradley A. Cruff, Judge.

          Mark A. Meyer, Wahpeton, ND, for plaintiff, appellant, and cross-appellee.

          Charlotte J. Skar Rusch, Fargo, ND, for defendant, appellee, and cross-appellant.


          McEvers, Justice

         [¶1] Kelly McCarthy appeals from a district court judgment dismissing her complaint with prejudice. We affirm, concluding the district court did not err in determining McCarthy's claim was barred by the statute of limitations.


         [¶2] On September 23, 2015, McCarthy's daughter died by suicide. Prior to her death, McCarthy's daughter received psychological counseling from Dr. Ariane Getz for several months beginning on February 23, 2015, for symptoms relating to anxiety and depression. McCarthy's daughter had ten total visits with Dr. Getz, occurring roughly once to twice a month. McCarthy's daughter was a minor when she was first seen by Dr. Getz, but turned 18 prior to her death. During the course of her visits with Dr. Getz, McCarthy's daughter expressed self-injurious behavior, anxiety, depression, passive thoughts about suicide, discord with her mother, and inconsistency in taking her medications. McCarthy's daughter's last visit with Dr. Getz occurred on September 10, 2015. On September 23, 2015, prior to discovering her daughter's death, McCarthy contacted Dr. Getz to report her daughter missing. McCarthy requested Dr. Getz put her daughter on a 72-hour hold once located.

         [¶3] On September 22, 2017, one day shy of the two-year anniversary of her daughter's death, McCarthy filed a complaint with the district court. On November 9, 2017, McCarthy filed a summons and complaint alleging malpractice against Dr. Getz. On November 14, 2017, the summons and complaint were served on Dr. Getz. Dr. Getz answered and claimed McCarthy's claims were barred by the statute of limitations. On May 23, 2018, Dr. Getz moved to dismiss the complaint or, in the alternative, for summary judgment, arguing (1) expert testimony on the elements of McCarthy's claim for medical malpractice was not served upon Dr. Getz within three months of commencing suit as required by N.D.C.C. § 28-01-46, and (2) McCarthy's allegations were time-barred by the applicable statute of limitations under N.D.C.C. § 28-01-18(3). McCarthy responded to Dr. Getz's motion. A hearing on Dr. Getz's motion was held where both parties presented oral argument. The court ruled from the bench, stating:

Here, we have the injury, which is the unfortunate death of her daughter and there was . . I don't know the timing, but it was shortly before that that she was imploring Dr. Getz to do a 72 hour hold. She obviously was involved in her daughter's behavioral health care at the time. Well aware of what's going on. And the objective question is whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists. And, so, I do believe you can only come to one conclusion. It does become a question of law, not fact. And, like I said, I believe the Long case is on point and with the death on . . . September 23 of 2015. That's two year statute of limitations, and unfortunately, the law has very harsh results. I'm going to find that the statute of limitations was missed in this case and, as a result, will be dismissed with prejudice.

         A written order and judgment were entered thereafter, granting Dr. Getz's motion for summary judgment.

         [¶4] McCarthy's issue on appeal is whether the district court erred as a matter of law in granting the motion for summary judgment based on the statute of limitations. Dr. Getz cross-appeals from the court's judgment, arguing the court erred in deciding the issue of whether there was expert testimony to support the element of causation.


         [¶5] We have articulated the standard of review for a similar case as follows:

Whether a district court properly granted summary judgment is a question of law subject to a de novo standard of review on the entire record. Under N.D.R.Civ.P. 56, summary judgment is appropriate if no dispute exists as to the material facts or the reasonable inferences to be drawn from the undisputed facts, or if resolving disputed facts will not change the result and any party is entitled to ...

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