Families Advocate, LLC v. Sanford Clinic N., CASE NO. 3:16-CV-00114

THE FAMILIES ADVOCATE, LLC, an Arizona Limited Liability Corporation, as Conservator of D.M., a Minor;and SARINA BONNO and JULIAN MORENO, Individually PLAINTIFFS v. SANFORD CLINIC NORTH d/b/a SANFORD CLINIC JAMESTOWN;SARAH SCHATZ, M.D.; and LUTHERAN CHARITY ASSOCIATION d/b/aJAMESTOWN REGIONAL MEDICAL CENTER DEFENDANTS

CASE NO. 3:16-CV-00114

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA EASTERN DIVISION

April 7, 2019

MEMORANDUM OPINION AND ORDER

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

I. BACKGROUND FACTS

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 Thefollowing 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.

II. SUMMARY OF NORTH DAKOTA'S DISCOVERY RULEAND PRESENT PROCEDURAL POSTURE

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 malpractice. Id. The existence of enough knowledge "is ordinarily a fact question which is inappropriate for summary judgment, but the issue becomes one of law if the evidence is such that reasonable minds could draw but one conclusion." Id. (internal quotation and citations omitted).

"A civil action is commenced by the service of a summons." N.D. R. Civ. P. 3. Here, it is undisputed that the action was commenced for statute of limitations purposes on June 22, 2016 (for claims against the Sanford Defendants), and June 23, 2016 (for claims against JRMC). So, to survive the dismissal of their claims on summary judgment, the Parents must demonstrate that there is a genuine, material dispute of fact about whether they had sufficient knowledge to satisfy North Dakota's discovery rule prior to June 23, 2014, the latest date of accrual for claims against both sets of Defendants.⁴

In moving for summary judgment, Defendants contend that the Parents had enough knowledge on the day D.M. was born to trigger accrual for limitations purposes. Since the Parents were on notice of complications at birth that necessitated resuscitation efforts, Defendants argue that the statute of limitations (on the Parents' separate claims) expired on May 19, 2016, two years after D.M. was born. And, to the extent the Parents had insufficient knowledge for these purposes on D.M.'s birthdate, then Defendants alternatively argue that the Parents surely acquired legally sufficient notice during their child's hospitalization in the Sanford NICU—which leads to the same legal result. In other words, D.M. was discharged from the NICU on June 21, 2014, so if the Parents are charged with possessing enough knowledge by that date, then suit was still commenced at least one or two days too late.

The Parents adamantly disagree with Defendants and maintain that they did not know—nor should they have been expected to know through the exercise of objectively reasonable diligence—either the mechanism or extent of D.M.'s injury, much less that the injury was a consequence of medical negligence.

Judge Senechal, applying North Dakota's discovery rule, observed that the date on which the statute of limitations is deemed to have accrued is ordinarily a question of fact. Given the nature and context of the facts and circumstances here, she found that there are genuine issues of material fact about when the Parents should be charged with legally sufficient notice as to the cause of D.M.'s injury and of Defendants' possible negligence.

The Defendants have filed separate sets of objections. These objections make some specific suggestions of error, but taken collectively, they generally argue that the Magistrate Judge misapplied North Dakota's discovery rule to the evidence presented in the summary judgment record.

This Court reviews de novo those portions of an R&R...