Johnson v. Mid Dakota Clinic, P.C.

864 N.W.2d 269

Joan D. JOHNSON, as personal representative of the Estate of Herman B. Johnson, deceased and Marguerite J. Johnson, by and through her attorney in fact, Joan D. Johnson, Plaintiffs and Appellants

v.MID DAKOTA CLINIC, P.C., Defendant and Appellee.

No. 20140274.

Supreme Court of North Dakota.

May 27, 2015.

William P. Zuger, Tampa, FL, for plaintiffs and appellants.

Michael C. Waller, Bismarck, N.D., for defendant and appellee.

Opinion

SANDSTROM, Justice.

[¶ 1] Joan Johnson, as personal representative of the Estate of Herman B. Johnson, deceased, and Marguerite Johnson, Herman Johnson's widow, appeal from a district court summary judgment dismissing their action against Mid Dakota Clinic. Because the Johnsons failed to present sufficient evidence to raise genuine issues of material fact precluding summary judgment, we affirm the judgment.

I

[¶ 2] On the morning of December 18, 2012, Herman Johnson experienced confusion and swelling of his legs and calves. That morning, Joan Johnson, Herman Johnson's daughter and attorney-in-fact, called the Veteran's Administration Clinic (“VA Clinic”) to schedule an appointment for Herman Johnson, but the VA Clinic did not return her call. As a result, Joan Johnson called Mid Dakota to schedule an appointment. Although she had requested a specific doctor, she was advised she would not be able to see him that day and was given an appointment with Donald Grenz, M.D., later that afternoon.

[¶ 3] Upon arriving at Mid Dakota Clinic at Gateway Mall, Joan and Herman Johnson checked in with the receptionist approximately seven minutes late for Herman Johnson's appointment. Because they were more than five minutes late, they were told Dr. Grenz would not see them but they could reschedule with Dr. Grenz for another day or go to the emergency room or the “Today Clinic,” a walk-in clinic within Mid Dakota's main clinic downtown. Joan and Herman Johnson subsequently left the clinic to seek alternative care. Upon entering the east vestibule of the Gateway Mall, Joan Johnson decided to seek the assistance of the VA Clinic, which was located in the mall immediately adjacent to Mid Dakota. As Joan and Herman Johnson turned to re-enter the mall, Herman Johnson fell and hit his head on the floor of the vestibule. As a result, he suffered a laceration along his forehead. Joan Johnson then returned to Mid Dakota and announced that Herman Johnson had fallen and was injured. A registered nurse employed by Mid Dakota assisted Herman Johnson until he was taken by ambulance to St. Alexius Medical Center and was admitted for observation. While Herman Johnson was hospitalized, he suffered two episodes of respiratory arrest, and he died on December 27, 2012.

[¶ 4] Joan Johnson, as personal representative of Herman Johnson's Estate and attorney in fact of Marguerite Johnson, sued Mid Dakota, alleging breach of contract, negligence, and professional negligence. The Johnsons specifically argued: (1) Mid Dakota breached its contract with Herman Johnson; (2) Mid Dakota's acts and omissions were negligent and proximately caused the damages suffered by Herman Johnson; and (3) Mid Dakota committed professional negligence by failing to meet the generally accepted standards for medical care and treatment.

[¶ 5] Mid Dakota responded to the Johnsons' amended complaint by moving for summary judgment. Mid Dakota argued, scheduling an appointment with a physician does not establish a legal duty to treat the patient, does not establish a physician-patient relationship necessary to maintain a medical malpractice claim, and does not constitute a contract. Mid Dakota argued that because there was no dispute as to the material facts, it was entitled to judgment as a matter of law.

[¶ 6] Following responsive and supplementary briefing by the parties, the district court granted summary judgment in favor of Mid Dakota. The court specifically held the mere act of scheduling an appointment did not create a physician-patient relationship or a binding contract between Mid Dakota and Herman Johnson. Moreover, the district court held Herman Johnson's injury and subsequent death were not proximately caused by Mid Dakota's cancellation of his appointment.

[¶ 7] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 8] On appeal, the Johnsons argue the district court erred in granting summary judgment in favor of Mid Dakota, because there are genuine issues of material fact regarding the following issues: (1) whether Herman Johnson was a patient of Mid Dakota; (2) whether Mid Dakota's negligent maintenance of its parking lot and its refusal to treat Herman Johnson were the legal causes of his injury; and (3) whether the elements of a contract were established.

[¶ 9] Rule 56(c), N.D.R.Civ.P., states, in part: “The judgment sought shall be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Summary judgment is a “procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result.” Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. “The party moving for summary judgment must show that there are no genuine issues of material fact and that the case is appropriate for judgment as a matter of law.” Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 N.W.2d 172 (citing Green, at ¶ 5). “ ‘On appeal, the evidence must be viewed in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences.’ ” Beckler, at ¶ 7 (quoting Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551). The party resisting summary judgment cannot, however, “merely rely on the pleadings, briefs, or unsupported and conclusory allegations.” Schmitt v. MeritCare Health System, 2013 ND 136, ¶ 8, 834 N.W.2d 627. The non-moving party must present “ ‘competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.’ ” Id. (quoting Mr. G's Turtle Mountain Lodge, Inc. v. Roland Twp., 2002 ND 140, ¶ 22, 651 N.W.2d 625). “The nonmoving party cannot rely on speculation and must present ‘enough evidence for a reasonable jury to find for the plaintiff.’ ” Beckler, at ¶ 7 (quoting Iglehart v. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343). This Court reviews a district court's grant of summary judgment de novo. Dalan v. Paracelsus Healthcare Corp., 2002 ND 46, ¶ 7, 640 N.W.2d 726.

III

[¶ 10] The Johnsons argue the district court erred in granting summary judgment to Mid Dakota on the Johnsons' professional and ordinary negligence claims. The Johnsons contend that because Mid Dakota failed to adequately maintain its parking lot, Herman Johnson was late to his appointment, was not seen by Dr. Grenz on account of his tardiness, and, after having been wrongfully turned away, suffered an injury that led to his death. In sum, the Johnsons argue Dr. Grenz's policy of not seeing patients who arrive more than five minutes late for appointments was a negligent breach of the duty Mid Dakota owed to Herman Johnson and Herman Johnson's fall was a foreseeable event proximately caused by Mid Dakota's refusal to treat Herman Johnson's medical condition.

[¶ 11] 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 harm complained of.’ ” Scheer v. Altru Health Sys., 2007 ND 104, ¶ 18, 734 N.W.2d 778 (quoting Van Klootwyk v. Baptist Home, 2003 ND 112, ¶ 20, 665 N.W.2d 679). Under N.D.C.C. § 28–01–46, however, expert testimony is not required to establish a duty if the breach is “so egregious that a layman is capable of comprehending its enormity.” Johnson v. Bronson, 2013 ND 78, ¶ 12, 830 N.W.2d 595 (quotation marks and citations omitted). This “obvious occurrence” exception applies “only to cases that are plainly within the knowledge of a layperson.” Johnson, at ¶ 12. When the “obvious occurrence” exception applies, “ ‘expert testimony is unnecessary precisely because a layperson can find negligence without the benefit of an expert opinion.’ ” Id. (quoting Larsen v. Zarrett, 498 N.W.2d 191, 195 (N.D.1993) ). The Johnsons do not argue the “obvious occurrence” exception applies to their professional negligence claim.

[¶ 12] In this case, the Johnsons argued Mid Dakota committed both professional and ordinary negligence because it breached the applicable standard of care by refusing treatment to Herman Johnson for being late and, as a result, proximately caused his eventual injury and death. In support of their argument, the Johnsons offered the deposition testimony of their medical expert, Michael Loes, M.D. Dr. Loes testified it was his opinion that Mid Dakota breached its duty to Herman Johnson because a reasonable clinic would not have refused to see a patient who was only seven minutes late; instead, he claimed a reasonable clinic would have performed a “common-sense assessment” to determine whether Herman Johnson's condition warranted immediate treatment or hospitalization.

[¶ 13] In addition, Dr. Loes also testified that had Herman Johnson been seen by Dr. Grenz, he would not have...