White v. Altru Health System

746 N.W.2d 173

2008 ND 48

Denise D. WHITE, Plaintiff and Appellant, v. ALTRU HEALTH SYSTEM, a North Dakota Corporation; First Care Health Center; P.R. Health Corporation, a North Dakota Corporation; and Jamil R. Tareen, M.D., Defendants and Appellees.

No. 20070031.

Supreme Court of North Dakota.

March 20, 2008.

Shirley Ann Dvorak (argued), Grand Forks, ND, and Thomas V. Omdahl (on

brief), Omdahl Law Office, Grand Forks, ND, for plaintiff and appellant.

Donna M. Smith (argued) and Randall S. Hanson (appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, ND, for defendants and appellees.

CROTHERS, Justice.

[¶ 1] Denise White appeals the district court's December 27, 2006 order denying her motion for reconsideration of dismissal, her motion to amend complaint, and her motion to vacate judgment. We conclude the district court abused its discretion by denying White's motion to vacate and her motion to reconsider because it applied the incorrect version of the statute. We reverse and remand for consideration under N.D.X.C.C.? § 28-01-46 (1997).

I

[¶ 2] Dr. Jamil Tareen, an employee of Altru Health System ("Altru"), performed surgery on White on February 10, 2004 at the First Care Health Center in Park River. The surgery consisted of a diagnostic laparoscopy followed by laparotomy and release of extensive pelvic adhesions. White alleges medical negligence because Tareen's medical license was restricted at the time of the surgery, a fact she claims was concealed from her. White also claims the surgical procedure caused an injury Tareen failed to properly diagnose or treat. White sought follow-up treatment for the alleged injury in early 2004.

[¶ 3] White served Altru with a summons and complaint on February 8, 2006. Altru served White with interrogatories and requests for production of documents on March 16, 2006. Though the court set a discovery deadline of mid-April 2006, the parties negotiated an extension. White served Altru with answers to the discovery requests on May 18, 2006, well before the agreed-upon deadline of June 1, 2006. One day prior to this service, Altru moved to dismiss White's complaint, alleging she failed to serve Altru with an expert affidavit supporting her claims as required by N.D.C.C. § 28-01-46. The district court dismissed White's claim without prejudice on September 22, 2006. White filed a motion for reconsideration of dismissal, a motion to vacate judgment and a motion to amend the complaint. On December 27, 2006, the district court denied all three motions.

II

[¶ 4] White appeals from the December 27, 2006 district court order denying her motion for reconsideration of dismissal, motion to amend complaint and motion to vacate judgment. "The right to appeal is a jurisdictional matter which this Court may consider on its own." Pratt v. Altendorf, 2005 ND 32, ¶ 4, 692 N.W.2d 115. Whether an order in a civil proceeding is reviewable by this Court is determined by statute. See N.D.C.C. § 28-27-02. This Court will not consider interlocutory appeals unless it can be affirmatively established the underlying order was "meant to be, in all aspects, final." Sime v. Tvenge Assoc. Architects, 488 N.W.2d 606, 608 n. 1 (N.D.1992). Ordinarily, an order arising out of a motion to vacate the judgment or a motion to amend the complaint is considered interlocutory and thus not appealable. Industrial Comm'n v. Kuntz, 486 N.W.2d 249, 251 (N.D.1992); Barth v. Schmidt, 472 N.W.2d 473, 474 (N.D.1991). Similarly, motions for reconsideration of dismissal generally are not appealable because they are treated as motions to alter or amend judgments or as a motion to vacate. Dvorak v. Dvorak, 2001 ND 178, ¶ 9, 635 N.W.2d 135. Interlocutory orders are appealable, however, if the Court "deem[s] it to be an appeal from a subsequently entered consistent final order or judgment." Dvorak v. Dvorak, 2007 ND 79, ¶ 7, 372 N.W.2d 698.

[¶ 5] Here, the underlying judgment is a dismissal without prejudice, which is ordinarily "not appealable because either side may commence another action." Winer v. Penny Enterprises, Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9. However, "dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiffs chosen forum." Rolette Co. Soc. Serv. Bd. v. B.E., 2005 ND 101, ¶ 4, 697 N.W.2d 333. The litigation has been effectively terminated and the judgment of dismissal becomes appealable when the statute of limitations has run for the underlying claims. Haugenoe v. Bambrick, 2003 ND 92, ¶ 2, 663 N.W.2d 175.

[¶ 6] Section 28-01-18(3), N.D.C.C., provides a two-year statute of limitations for medical malpractice claims. The statute of limitations "begins to run only when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence." Hoffner v. Johnson, 2003 ND 79, ¶ 10, 660 N.W.2d 909. White's medical malpractice claim arises out of surgery performed on February 10, 2004. White states she was hospitalized on March 15, 2004 for complications due to the surgery. We conclude for purposes of this appeal only that the statute began to run on or about March 15, 2004, expiring March 15, 2006. White's case was dismissed on October 17, 2006, several months after the statute had run. White is foreclosed from starting another action. Because the statute of limitations has expired and dismissal without prejudice has effectively terminated White's claims, the orders on post-judgment motions are appealable.

III

[¶ 7] Motions to amend complaint and motions to vacate judgment are reviewed under an abuse of discretion standard. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 10, 730 N.W.2d 841; Gonzalez v. Tounjian, 2004 ND 156, ¶ 9, 684 N.W.2d 653. While North Dakota law does not formally recognize motions to reconsider, we have treated such motions as motions to alter or amend the judgment under N.D.R.Civ.P. 59(j), which may be reversed if the trial court misinterpreted or misapplied the law. Dinger v. Strata Corp., 2000 ND 41, ¶ 12, 607 N.W.2d 886; Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895.

[¶ 8] The outcome of this case depends upon which version of N.D.C.C. § 28-01-46 is applicable. Section 28-01-46, N.D.C.C, "was `designed simply to minimize frivolous [malpractice] claims' by requiring the plaintiff to obtain an expert opinion supporting [his claims] during [the] early stages of [ ] litigation." Larson v. Hetland, 1999 ND 98, ¶ 12, 593 N.W.2d 785 (quoting Heimer v. Privratsky, 434 N.W.2d 357, 359 (N.D.1989)). The 1997 version of the statute reads, in pertinent part, "[t]his section does not apply to alleged lack of informed consent. . . ." N.D.C.C. § 28-01-46 (1997). The 2005 amendment removes this exception. N.D.C.C. § 28-01-46 (2005). Here, two issues affect which version of the statute is applied. First, we determine whether the district court correctly used the version of the statute in effect on the commencement date of White's action rather than the version in effect on her injury date. Second, we consider whether N.D.C.C. § 28-01-46 should be applied retroactively.

A

[¶ 9] The district court applied the version of N.D.C.C. § 28-01-46 in effect on the commencement date of White's action. The court relied upon Larson, stating:

"[In Larson t]here was no reference to the date or time of the alleged negligent act, but rather, the Supreme Court referred to the date the action was commenced.

"Here, this action was commenced in February of 2006. The applicable statute in effect in February of 2006 was the 2005 version of N.D.C.C. § 28-01^6, the version relied on in the Order Granting Defendant's Motion To Dismiss."

[¶ 10] Too much significance has been placed on the dates in Larson. Whether the commencement date of the case or the injury date is used was of no consequence in Larson because N.D.C.C. § 28-01-46 (1981) was in effect during both time periods. Larson stands only for the principle that between the commencement date and the date the defendant moves to dismiss, the commencement date controls. More germane authority to the present case is found in Fortier v. Traynor, 330 N.W.2d 513, 515-16 (N.D.1983). In Fortier, this Court held the applicable law in malpractice actions is the law in effect when the cause of action arises. Id. See also Hoffner, 2003 ND 79, ¶ 11, 660 N.W.2d 909 (holding a cause of action accrues once an injury has occurred and manifested itself); State v. Dimmler, 456 N.W.2d 297, 298 (N.D.1990) (holding the correct date to use when determining the controlling statute is date upon which the claim arose).

[¶ 11] Unless amendments to N.D.C.C. § 28-01-16, are retroactive, the district court should have used the date White's cause of action accrued in its analysis rather than the commencement date of the action.

B

[¶ 12] Because the injury allegedly occurred while N.D.C.C. § 28-01-46 (1997) was in effect, a later version of the statute may be applied only if the statute is found to warrant retroactive application. The Legislature may give a statute retrospective operation as long as it does not affect substantive rights. See State v. Norman, 2003 ND 66, ¶ 21, 660 N.W.2d 549. However, the legislative direction to make a statute retroactive must be clear.

[¶ 13] Section 1-02-10, N.D.C.C, states, "No part of this code is retroactive unless, it is expressly declared to be so." While the plain language of this statute is unambiguous, prior case law has held this rule precatory because it is a canon of statutory construction and, therefore, "subservient to the goal of statutory interpretation: to ascertain and effectuate legislative intent." State v. Cummings, 386 N.W.2d 468, 471 (N.D.1986). According to the Court in Cummings, if legislative intent can be extrapolated in other ways, N.D.C.C. § 1-02-10 and the other rules of interpretation are simply guidelines.

[¶ 14] The approach in Cummings might be correct if the rules of interpretation...