Burr v. Trinity Medical Center

• Decision Date: 01 December 1992
• Docket Number: No. 920155,920155
• Citation: 492 N.W.2d 904
• Parties: Irene Meyers BURR, Plaintiff and Appellant, v. TRINITY MEDICAL CENTER; St. Joseph's Hospital; Kathryn Guggenheim, M.D.; K.J. Keller, M.D.; K.H. Lee, M.D.; Berchmans Rioux, M.D.; and Irwin J. Epstein, M.D., Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 904

492 N.W.2d 904

Irene Meyers BURR, Plaintiff and Appellant, v. TRINITY MEDICAL CENTER; St. Joseph's Hospital; Kathryn Guggenheim, M.D.; K.J. Keller, M.D.; K.H. Lee M.D.; Berchmans Rioux, M.D.; and Irwin J. Epstein, M.D., Defendants and Appellees.

Civ. No. 920155.

Supreme Court of North Dakota.

Dec. 1, 1992.

Robert J. Golten (argued), Fredericks, Pelcyger, Hester & White, Boulder, Colo., and Carl O. Flagstad, Jr. (appearance), Minot, for plaintiff and appellant.

John C. Kapsner (argued on behalf of all defendants and appellees), Kapsner & Kapsner, Bismarck, for defendant and appellee St. Joseph's Hosp.; appearance by Leslie Bakken Oliver.

Patrick J. Maddock, McElroy, Camrud, Maddock & Olson, Ltd., Grand Forks, for defendant and appellee Trinity Medical Center.

Donald L. Peterson, McGee, Hankla, Backes & Wheeler, P.C., Minot, for defendant and appellee Kathryn Guggenheim, M.D.

Dean A. Hoistad, Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., for defendant and appellee K.H. Lee, M.D.

William P. Zuger, Zuger Law Offices, Bismarck, for defendant and appellee Irwin J. Epstein, M.D.

Lance D. Schreiner, Zuger, Kirmis, Bolinske & Smith, Bismarck, for defendant and appellee K.J. Keller, M.D.

H. Patrick Weir, Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant and appellee Berchmans Rioux, M.D.

ERICKSTAD, Chief Justice.

Irene Meyers Burr (Burr) appeals from an order and judgment entered by the District Court for Ward County on March 31 1992, dismissing with prejudice her claim of wrongful death resulting from medical malpractice against Kathryn Guggenheim, M.D., K.J. Keller, M.D., K.H. Lee, M.D., Berchmans Rioux, M.D., Irwin J. Epstein, M.D., Trinity Medical Center, and St. Joseph's Hospital (Medical Defendants). We affirm.

In the early morning hours of July 6, 1988, Kelly Meyers (Meyers) was arrested at his girlfriend's apartment in New Town, North Dakota, by law enforcement officers from the Bureau of Indian Affairs (BIA) and the city of New Town, on an alleged drunk and disorderly complaint. He was detained in the local jail following his arrest. Hours after his arrest, he was found on the floor of his jail cell unable to move his arms and legs. Authorities transported Meyers to Trinity Medical Center in Minot, North Dakota, where he was diagnosed with alcohol intoxication and dependence, and a possible conversion reaction or malingering. He was admitted to the psychiatric unit at St. Joseph's Hospital in Minot. Two days subsequent, on July 8, 1988, Meyers suffered respiratory failure, became comatose, and was transported to St. Alexius Medical Center in Bismarck, North Dakota. Eleven days later, on July 19, 1988, Meyers died. An autopsy report revealed that Meyers suffered a broken neck, possibly occurring during his arrest by the BIA and New Town police.

Burr is Meyers' mother. On July 3, 1990, Burr brought an action in the United States District Court, District of North Dakota, against the United States, the BIA, and the city of New Town (Government Defendants). ¹ In the same case, Burr sued the Medical Defendants for wrongful death resulting from medical malpractice, and asserted diversity jurisdiction under 28 U.S.C. Sec. 1332.

The claims against the Government Defendants were settled. Subsequently, the Medical Defendants jointly filed a motion to dismiss, arguing that the federal court did not have subject matter jurisdiction over them for lack of diversity and lack of pendent party jurisdiction. On August 27, 1991, the federal court granted the Medical Defendants' joint motion and dismissed Burr's action without prejudice. ²

On November 26, 1991, Burr filed an action for wrongful death resulting from medical malpractice against the Medical Defendants in the state district court. Each of the Medical Defendants filed a timely response and motion for summary judgment, asserting that the claim was time-barred by the statute of limitations. ³ The state district court granted the Medical Defendants' motions and dismissed Burr's case with prejudice. This appeal followed, with the sole issue being whether or not the statute of limitations in a state cause of action is equitably tolled while the cause of action is asserted in a federal court under pendent jurisdiction. ⁴ We hold, in this particular case, that the statute of limitations was not equitably tolled.

The legislature has spoken concerning the time within which claims must be brought asserting medical malpractice resulting from wrongful death. It enacted Section 28-01-18(4), N.D.C.C., which specified that a cause of action for wrongful death is to be brought within two years of the death. However, if the death results from malpractice, "the claim for relief is deemed to have accrued at the time of the discovery of the malpractice." Id.

Burr asserts that even though the legislature has limited the time within which she must bring her claim, we may extend her time beyond the limit utilizing the doctrine of equitable tolling. In essence, she contends that we may toll, through equity, ⁵ the statute of limitations in North Dakota courts while she asserts her claim in federal court, as long as her first filing in federal court was timely under the North Dakota statute, which it was. She asserts that North Dakota district courts have jurisdiction to do both law and equity, as pronounced by the legislature in Section 27-05-06, N.D.C.C. It provides:

"Jurisdiction of district courts. The district courts of this state have the general jurisdiction conferred upon them by the constitution, and in the exercise of such jurisdiction they have power to issue all writs, process, and commissions provided therein or by law or which may be necessary for the due execution of the powers with which they are vested. Such courts have:

* * * * * *

3. All the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carrying into effect their judgments, orders, and other determinations, subject to a reexamination by the supreme court as provided by law."

Id. (emphasis added). ⁶

While recognizing that district courts possess the power to fashion equitable remedies, we are compelled to acknowledge that the legislature has also codified a list of priorities of authoritative law in North Dakota. In viewing that denotation of authority, we observe that common law falls at the very bottom.

"Expression of law. The will of the sovereign power is expressed by:

1. The Constitution of the United States.

2. Treaties made under the authority of the United States.

3. Statutes enacted by the Congress of the United States.

4. The constitution of the state.

5. The statutes of the state.

6. The ordinances of other and subordinate legislative bodies.

7. The decisions of the tribunals enforcing those rules, which, though not enacted, form what is known as customary or common law."

Section 1-01-03, N.D.C.C. (emphasis added). A further indicia of the preferable treatment afforded statutory law rather than common law is found in Section 1-01-06, N.D.C.C., which states: "In this state there is no common law in any case where the law is declared by the code." Id. (emphasis added).

The above statutory laws bespeak the legislature's persistence that codified law commands more attention and compliance than common law. Therefore, it would be inappropriate for district courts to haphazardly fashion equitable remedies with no deference to codified law. Instead, district courts should tread carefully when entering the realm of equitable remedies, fashioning them only when directed to do so by statutes and court rules, when there is no adequate legal remedy, or when the equitable remedy is better adjusted to render complete justice. See D.C. Trautman Co. v. Fargo Excavating Co., 380 N.W.2d 644, 645 (N.D.1986) ("[a] party is not entitled to equitable relief if there is a remedy provided by law which is equally adjusted to rendering complete justice"); A & A Metal Bldgs. v. I-S, Inc., 274 N.W.2d 183, 188 (N.D.1978) ("[a] court has equitable jurisdiction to provide a remedy where none exists at law"); Ziebarth v. Kalenze, 238 N.W.2d 261, 267 (N.D.1976) ("the existence of a remedy at law does not preclude equitable relief if the equitable remedy is better adapted to render more perfect and complete justice"); Graven v. Backus, 163 N.W.2d 320, 327 (N.D.1968) ("if the equitable remedy is better adapted to render more perfect and complete justice than" the legal remedy, it should be implemented).

This Court has never applied the doctrine of equitable tolling to prevent a statute of limitations from running. It is a question of first impression for us. There are existing, however, various other options a plaintiff may employ to extend or avoid the statute of limitations in a particular case. For instance, this state has long recognized the doctrine of equitable estoppel. See Section 31-11-06, N.D.C.C. ⁷ It has been asserted in various cases in an attempt to defeat a defendant's statute of limitations defense. See Schmidt v. Grand Forks Country Club, 460 N.W.2d 125 (N.D.1990) (unsuccessful use of equitable estoppel); Szarkowski v. Reliance Ins. Co., 404 N.W.2d 502 (N.D.1987) (case reversed and remanded for factual determination on equitable estoppel); Krueger v. St. Joseph's Hospital, 305 N.W.2d 18 (N.D.1981) (summary judgment reversed and remanded due to factual issues indicating that defendants should have been equitably estopped from asserting a statute of limitations defense); Fetch v. Buehner, 200 N.W.2d 258 (N.D.1972) (unsuccessful use of equitable estoppel).

To successfully implement the doctrine of equitable estoppel, the plaintiff must carry the burden of proving three elements. Fetch v. Buehner, 200 N.W.2d at 261. First, the plaintiff must prove that the defendant made statements and "from the nature of defenda...