from the District Court of Richland County, Southeast
Judicial District, the Honorable Bradley A. Cruff, Judge.
A. Meyer, Wahpeton, ND, for plaintiff, appellant, and
Charlotte J. Skar Rusch, Fargo, ND, for defendant, appellee,
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
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.
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.
written order and judgment were entered thereafter, granting
Dr. Getz's motion for summary judgment.
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.
We have articulated the standard of review for a similar case
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 ...