Ballensky v. Flattum-Riemers

• Decision Date: 05 June 2006
• Docket Number: No. 20050277.,20050277.
• Citation: 716 N.W.2d 110,2006 ND 127
• Parties: Jerric D. BALLENSKY, Plaintiff and Appellant v. Jan Marie FLATTUM-RIEMERS, M.D., Defendant and Appellee Hazen Memorial Hospital Association, d/b/a Sakakawea Medical Center and Missouri Slope Medical Arts, and Missouri Slope Medical Arts, a partnership of Jan Flattum-Riemers and Roger Kulas, Defendants.
• Court: North Dakota Supreme Court

Page 110

716 N.W.2d 110

2006 ND 127

Jerric D. BALLENSKY, Plaintiff and Appellant v. Jan Marie FLATTUM-RIEMERS, M.D., Defendant and Appellee

Hazen Memorial Hospital Association, d/b/a Sakakawea Medical Center and Missouri Slope Medical Arts, and Missouri Slope Medical Arts, a partnership of Jan Flattum-Riemers and Roger Kulas, Defendants.

No. 20050277.

Supreme Court of North Dakota.

June 5, 2006.

COPYRIGHT MATERIAL OMITTED

Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.

Michael T. Andrews, Vogel Law Firm, Bismarck, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Jerric D. Ballensky appeals from a summary judgment dismissing his lawsuit against Dr. Jan Flattum-Riemers for damages for breach of the physician-patient privilege. We conclude Ballensky's failure to file his complaint after one defendant's demand to file the complaint does not void service of the summons as to other defendants, Ballensky presented sufficient evidence to raise a factual dispute about whether he was damaged by Dr. Flattum-Riemers' alleged unauthorized disclosure of privileged information, and Ballensky presented sufficient evidence to raise a factual dispute about whether Dr. Flattum-Riemers made a good faith report to a highway patrol officer under N.D.C.C. § 43-17-41(1993). We reverse and remand.

I

[¶ 2] In October 1995, Dr. Flattum-Riemers treated Ballensky for injuries he sustained in a motor vehicle accident in which Ballensky was the driver and Ballensky's friend, a passenger in the vehicle, was killed. The accident occurred when Ballensky's vehicle inexplicably swerved into the wrong lane of a state highway and collided with an oncoming vehicle. Both Dr. Flattum-Riemers and a highway patrol officer investigating the accident testified in their depositions that they did not believe Ballensky was under the influence of alcohol or drugs at the time of the accident. Dr. Flattum-Riemers nevertheless ordered a drug screen as part of her treatment of Ballensky. Ballensky tested positive for cannabinoids, and Dr. Flattum-Riemers provided the results of the drug screen to the highway patrol officer investigating the accident. According to Dr. Flattum-Riemers, she also told the officer the decedent's family was interested in the results, and she told the family that they needed to talk to the officer. The State ultimately charged Ballensky with manslaughter, and he subsequently pled guilty to negligent homicide.

[¶ 3] In a complaint dated October 16, 1997, and served on Dr. Flattum-Riemers on October 18, 1997, Ballensky alleged Dr. Flattum-Riemers breached the physician-patient privilege by informing the highway patrol officer on October 17, 1995, that Ballensky "had tested positive for the presence of marijuana in his urine." Ballensky alleged the highway patrol officer was investigating the motor vehicle accident and the information provided by Dr. Flattum-Riemers to the officer was used against Ballensky in the criminal prosecution for negligent homicide. He claimed Dr. Flattum-Riemers' actions injured him physically and emotionally and he suffered economic and noneconomic damages under N.D.C.C. § 32-03.2-04.

[¶ 4] Ballensky's complaint also named Hazen Memorial Hospital Association, doing business as Sakakawea Medical Center, as a defendant. In November 2000, Hazen Memorial Hospital served Ballensky with a demand to file the complaint, which informed Ballensky if the complaint was not filed within 20 days, the summons was void under N.D.R.Civ.P. 4(c)(3). According to Ballensky, he decided not to pursue his lawsuit against Hazen Memorial Hospital, and he did not file his complaint until February 2004. In April 2004, Ballensky voluntarily dismissed his lawsuit against Hazen Memorial Hospital.

[¶ 5] The district court subsequently granted Dr. Flattum-Riemers' motion for summary judgment, concluding (1) Ballensky's lawsuit was barred by the two-year statute of limitations for medical malpractice actions because the summons and complaint were served on Dr. Flattum-Riemers one day after the statute of limitations had run, and (2) Ballensky failed to state a cause of action upon which relief could be granted because any damage incurred by him resulted from his own conduct in pleading guilty to negligent homicide.

[¶ 6] The district 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

[¶ 7] We consider the issues raised in this appeal in the posture of summary judgment, which is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45. A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. On appeal, we view the evidence in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences. Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551. Whether a district court properly granted summary judgment is a question of law that we review de novo on the entire record. Johnson, at ¶ 9.

III

[¶ 8] On appeal, Ballensky argues the district court erred in granting summary judgment under the two-year statute of limitations for medical malpractice actions in N.D.C.C. § 28-01-18(3), because his action is not a medical malpractice action. He argues that even if his action is characterized as a medical malpractice action, it was commenced within the two-year period in N.D.C.C. § 28-01-18(3), because the sheriff for Mercer County received the summons and complaint on October 16, 1997. Ballensky asserts he complied with N.D.C.C. § 28-01-38(1), which provides that an action is commenced when the summons, with intent that it actually shall be served, is delivered to the sheriff of the county in which the defendant resides. See Long v. Jaszczak, 2004 ND 194, ¶ 11, 688 N.W.2d 173 (an action begins when summons is delivered to the sheriff). In her appellate brief to this Court, Dr. Flattum-Riemers admitted the district court overlooked that Ballensky had delivered process to the sheriff, and during oral argument, Dr. Flattum-Riemers conceded the court erred in concluding Ballensky's lawsuit was not commenced within the applicable statute of limitations.

[¶ 9] Relying on Howes v. Kelly Services, Inc., 2002 ND 131, 649 N.W.2d 218, Dr. Flattum-Riemers nevertheless argues Ballensky's service of the summons on her became void under N.D.R.Civ.P. 4(c)(3), because Ballensky did not file his complaint within twenty days after Hazen Memorial Hospital's November 2000 service on him of a demand to file the complaint. In Howes, at ¶ 12, the plaintiff sued three separate defendants for negligence. Two defendants separately answered and demanded a nine-person jury. Id. The third defendant, Kelly Services, answered but did not demand a jury trial. Id. Before trial, the other two defendants were dismissed from the lawsuit. Id. This Court held Kelly Services was entitled to rely on the other two defendants' demand for a nine-person jury. Id. at ¶ 16. Dr. Flattum-Riemers argues Howes controls this case, and she is entitled to rely upon her co-defendant's demand to file a complaint. She argues she relied on Hazen Memorial Hospital's demand, and because Ballensky undisputedly failed to file the complaint within twenty days of that demand under N.D.R.Civ.P. 4(c)(3), the service of the summons on her became void and Ballensky's claims are now time barred under any applicable statute of limitations.

[¶ 10] Ballensky argues service of process is personal, and although his service on Hazen Memorial Hospital became void, his service on Dr. Flattum-Riemers did not become void when he failed to file the complaint within twenty days after Hazen Memorial Hospital's demand. He argues the demand under N.D.R.Civ.P. 4(c)(3) was not made by Dr. Flattum-Riemers, and the summons did not become void as to her, but became void only as to Hazen Memorial Hospital. Ballensky argues Howes is distinguishable because it involved a demand for a jury trial and not a demand to file a complaint. He claims federal authority on jury requests and the applicable North Dakota rule both provide that once a request for a jury trial has been made, it may not be withdrawn without consent of the "parties."

[¶ 11] We agree with Ballensky that Howes is not controlling. A jury demand by one party governs the trial of the entire action and may not be withdrawn under N.D.R.Civ.P. 38(e) without consent of the "parties." See Howes, 2002 ND 131, ¶ 16, 649 N.W.2d 218. A demand to file a complaint under N.D.R.Civ.P. 4(c)(3) relates to service of a summons upon a defendant, and if a plaintiff does not file a complaint within twenty days after service of the demand, service of the summons is void. Under our procedural rules, a demand to file a complaint is personal to the demanding defendant, and the fact a summons may be void as to one defendant does not void service of the summons as to other defendants. We conclude Ballensky's failure to file the complaint within twenty days after the demand by Hazen Memorial Hospital does not affect his claims against Dr. Flattum-Riemers.

IV

[¶ 12] Ballensky argues the district court erred in granting summary judgment because damages are a question of fact. He argues he presented sufficient evidence to the district court to preclude summary judgment on damages, including evidence of emotional distress, embarrassment, and humiliation. He contends he lost his best friend in an automobile accident in which he...