Davis v. Mercy Med. Ctr.

994 N.W.2d 380

Michael DAVIS and Kimberly Davis, Plaintiffs and Appellees v. MERCY MEDICAL CENTER d/b/a CHI St. Alexius Health Williston; and David Keene, M.D., Defendants and Appellants and Cherise Norby, N.P., Defendant

No. 20220325

Supreme Court of North Dakota.

Filed August 17, 2023

Jed Kurzban (argued) and Lauren Gallagher (appeared), Coral Gables, FL, and Mark V. Larson (appeared) and Anders Larson (on brief), Minot, ND, for plaintiffs and appellees.

Tracy V. Kolb (argued), Bismarck, ND, and Rodger A. Hagen (appeared) and Julia J. Nierengarten (appeared), Minneapolis, MN, for defendants and appellants Mercy Medical Center d/b/a CHI St. Alexius Health Williston and David Keene, M.D.

Jeffrey S. Weikum (on brief), Bismarck, ND, for amicus curiae North Dakota Association for Justice.

Crothers, Justice.

[¶1] Mercy Medical Center d/b/a CHI St. Alexius Health Williston; and David Keene, M.D. (Defendants), appeal from an amended judgment awarding Michael and Kimberly Davis $1,660,000 in damages and $204,973.31 in costs and disbursements for medical malpractice relating to Michael Davis’ kidney failure. The Defendants also appeal from an order denying their motion for judgment as a matter of law. We affirm in part, reverse in part and remand.

I

[¶2] In February 2016, Michael Davis visited CHI in Williston. Cherise Norby, N.P., treated Davis for flu-like symptoms. A blood test indicated Davis had an elevated white blood cell count. Davis returned to Norby in October 2016, complaining of frothy urine. Blood and urine tests showed Davis had an elevated white blood cell count and protein and blood in his urine. Norby referred Davis to a urologist for further evaluation. After a January 2017 examination, the urologist found no urological explanation for Davis’ abnormal test results.

[¶3] In June 2017, Davis followed up with Norby. Davis’ lab results showed the blood and protein levels in his urine had tripled since the earlier tests in October 2016 and January 2017. Davis returned to the urologist, who again found no urological explanation for Davis’ abnormal test results.

[¶4] On September 14, 2017, Davis went to the emergency room at Holy Rosary Healthcare in Miles City, MT, complaining of hand and leg pain. A blood test indicated elevated white blood cells, elevated creatinine, and low estimated glomerular filtration rate (eGFR), which measures how well the kidneys filter blood. Holy Rosary recommended Davis follow up with his primary care provider due to the abnormal lab results.

[¶5] On September 15, 2017, Davis followed up with CHI as recommended by Holy Rosary. From September 15 to September 25, Davis was treated by Dr. David Keene three times. Davis’ blood test results continued to show an elevated white blood cell count. Dr. Keene's notes acknowledged Davis had abnormal lab results since 2016, but Dr. Keene did not order a urinalysis or refer Davis to a nephrologist for further examination.

[¶6] In March 2018, Davis saw Dr. Bruce Pugatch at CHI. Davis had elevated blood pressure and his urine test showed elevated creatinine levels. As a result of Davis’ elevated creatinine levels, Dr. Pugatch referred Davis to a nephrologist.

[¶7] On March 29, 2018, Davis had a renal biopsy at Mayo Clinic. The biopsy demonstrated Davis was in kidney failure because of a kidney disease known as IgA nephropathy. On March 4, 2020, Davis received a kidney transplant at age 40.

[¶8] Before his kidney transplant, Michael and Kimberly Davis sued CHI, Norby, and Dr. Keene, alleging they failed to treat signs of kidney disease and timely refer Michael Davis to a nephrologist. Michael and Kimberly Davis alleged they suffered damages as a result of the Defendants’ delay in treating Michael Davis’ kidney disease, which led to kidney failure.

[¶9] At trial, the Davises’ expert witness, nephrologist Dr. Bradley Denker, testified IgA nephropathy is treatable, and the earlier you treat it, the better. Dr. Denker testified that if Davis’ kidney disease was treated earlier, his kidney failure could have been delayed by approximately 15 years. The Davises presented evidence on past and future medical expenses, and requested over $5,000,000 in damages.

[¶10] The jury found Norby was not at fault in her treatment of Michael Davis. The jury found Dr. Keene was at fault in his treatment of Davis, and Dr. Keene's fault was a proximate cause of the Davises’ injuries. The jury awarded Michael and Kimberly Davis $1,660,000 in damages. The district court awarded the Davises $5,614.12 in interest and $204,973.31 in disbursements and costs for a total judgment of $1,870,587.43.

[¶11] The Defendants moved for a post-trial judgment as a matter of law under N.D.R.Civ.P. 50, arguing the Davises did not present sufficient evidence establishing Dr. Keene's failure to refer Michael Davis to a nephrologist proximately caused Davis’ injuries. The Defendants also claimed the Davises did not present adequate evidence to support the jury's award of damages. The district court denied the motion and upheld the jury's verdict.

II

[¶12] The Defendants argue the district court erred by denying their N.D.R.Civ.P. 50 motion for judgment as a matter of law. They claim the Davises failed to present sufficient evidence relating to proximate cause and damages.

[¶13] Rule 50, N.D.R.Civ.P., governs judgments as a matter of law. Under N.D.R.Civ.P. 50(a)(1), a district court may grant a motion for judgment as a matter of law "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." A party moving for judgment as a matter of law is claiming the evidence is insufficient to create a question of fact for the jury. Pavlicek v. Am. Steel Sys., Inc. , 2019 ND 97, ¶ 7, 925 N.W.2d 737. Whether evidence is sufficient to create a question of fact for the jury is a question of law to be decided by the district court. Id.

[¶14] This Court has explained the standard of review for a Rule 50 motion for judgment as a matter of law:

"The trial court's decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. In considering this motion, the trial court must apply a rigorous standard with a view toward preserving a jury verdict, and so must we in our review on appeal. In determining if the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which support the verdict. The trial court's decision on a motion for judgment as a matter of law is fully reviewable on appeal."

Pavlicek , 2019 ND 97, ¶ 8, 925 N.W.2d 737 (quoting Bjorneby v. Nodak Mut. Ins. Co. , 2016 ND 142, ¶ 7, 882 N.W.2d 232 ).

A

[¶15] The Defendants assert the Davises did not establish Dr. Keene's failure to refer Michael Davis to a nephrologist in September 2017 proximately caused Michael Davis’ kidney failure and need for a kidney transplant.

[¶16] To establish a prima facie case of professional negligence, a plaintiff must produce expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the plaintiff's injury. Johnson v. Mid Dakota Clinic, P.C. , 2015 ND 135, ¶ 11, 864 N.W.2d 269. "A proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred." Id. at ¶ 17. The term "proximate cause" contemplates "an immediate cause which in natural and probable sequence produces the injury complained of" and expressly excludes any assignment of legal liability "based on speculative possibilities, or circumstances and conditions remotely connected with the events leading up to the injury." Id.

[¶17] The Davises claim Dr. Keene's failure to refer Michael Davis to a nephrologist produced his injury: kidney failure and a kidney transplant. The Davises’ expert witness, nephrologist Dr. Denker, testified primary care providers are "the primary source of referrals to a specialty clinic." Dr. Denker testified patients are referred to him "with nothing more than blood and protein in the urine." He testified he often sees patients with symptoms such as frothy urine, protein in the urine, blood in the urine, elevated creatinine, and high blood pressure. He testified kidney disease does not mean kidney failure, and explained the difference between kidney disease and kidney failure :

"So let me start with kidney failure. That's when the absolute number of those [kidney] filters has gotten to a critically low level, so now the body can't maintain balance. You're retaining things, fluids, electrolytes that could be dangerous, and the kidneys are a vital organ. You're going to die unless something is done to treat kidney failure. And to treat kidney failure, we have a couple of choices, two types of dialysis and kidney transplantation. None of those are cures, or even the transplant's not a cure. It's a treatment for really what is kidney failure.

" Kidney disease is anything from the recognition of protein in the urine alone that qualifies as kidney disease, even with normal kidney function, as Mike did back in October of 2016.

"So kidney disease is very loosely defined as any abnormality in the urine originating from those filters, any significant reduction in kidney function, or anatomic abnormality of the kidney. That's the official definition of kidney disease."

[¶18] Dr. Denker testified the kidney diseaseIgA...