Hoffner v. Johnson

Decision Date12 May 2003
Docket NumberNo. 20020208.,20020208.
Citation2003 ND 79,660 N.W.2d 909
PartiesMonte L. HOFFNER and Kris Hoffner, Plaintiffs and Appellants v. George M. JOHNSON, M.D. and Fargo Clinic/MeritCare, Defendants and Appellees.
CourtNorth Dakota Supreme Court

Lee R. Bissonette (argued), Lambert & Bissonette, Wayzata, MN, Scott K. Porsborg (appeared), Smith Bakke Oppegard Porsborg Wolf, Bismarck, and Daniel L. Hovland (on brief), for plaintiffs and appellants.

Angela Elsperger Lord (argued) and Jane C. Voglewede (on brief), Vogel Law Firm, Fargo, for defendants and appellees.

VANDE WALLE, Chief Justice.

[¶ 1] Monte and Kris Hoffner appealed from a judgment dismissing their claims against Dr. George M. Johnson and Fargo Clinic/MeritCare. We affirm, concluding the six-year statute of repose for medical malpractice is constitutional and bars the claims in this action.


[¶ 2] In 1988, Dr. Johnson diagnosed fourteen-year-old Monte Hoffner with Type I diabetes. Monte was hospitalized for a time and, upon discharge, continued receiving treatment for his diabetes. In 1992, Monte again saw Dr. Johnson and underwent additional testing. On May 28, 1992, Dr. Johnson advised Monte in a letter that his diabetes had been cured and Monte did not need to do routine blood sugar testing:

Monte, I feel strongly you have had in the past Type II diabetes, rather than Type I diabetes. You have never had ketones in your urine or diabetic ketoacidosis....
All this means that you have "lost" your diabetes because you lost a lot of weight following your original diagnosis in 1988. The stability of blood sugars and the very small doses of insulin ever since 1988 suggest you have a very unusual circumstance, Type II diabetes of youth (which in itself is rare) followed by "cure" of diabetes because you lost weight and have maintained a high activity level.
You should not need to do blood sugars in the future unless you start to gain a lot of weight. Please be advised when you grow older that diabetes can "return" if you are not careful about what you eat and you gain weight.
Insofar as I am concerned, there is absolutely no reason for insurance programs to cause difficulty for you during enrollment. Again, you have "lost" your Type II diabetes mellitus.

Dr. Johnson did not treat Monte or have any further contact with him after the 1992 letter.

[¶ 3] In December 1999, Monte experienced flu-like symptoms and weight loss. Doctors discovered Monte was still diabetic and recommenced insulin treatments. Monte suffered numerous complications allegedly caused by his untreated diabetes, including loss of vision in both eyes, peripheral neuropathy, cancer, and a pancreas transplant. Monte died on January 4, 2002, at the age of 27.

[¶ 4] On November 20, 2001, shortly before Monte died, he and his wife Kris brought this medical malpractice action against Dr. Johnson and Fargo Clinic/MeritCare. Dr. Johnson and Fargo Clinic/MeritCare (collectively "Johnson") moved for summary judgment under the six-year statute of repose for medical malpractice actions in N.D.C.C. § 28-01-18(3). On June 7, 2002, the court granted Johnson's motion for summary judgment. Judgment dismissing the action was entered on June 25, 2002, and the Hoffners appealed.1


[¶ 5] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result. Jundt v. Jurassic Res. Dev., 2003 ND 9, ¶ 23, 656 N.W.2d 15; Hilton v. North Dakota Educ. Ass'n, 2002 ND 209, ¶ 23, 655 N.W.2d 60. The evidence must be viewed in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Abel v. Allen, 2002 ND 147, ¶ 8, 651 N.W.2d 635; Mr. G's Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 21, 651 N.W.2d 625. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record. Kondrad v. Bismarck Park Dist., 2003 ND 4, ¶ 4, 655 N.W.2d 411; Duemeland v. Norback, 2003 ND 1, ¶ 8, 655 N.W.2d 76.


[¶ 6] The district court granted summary judgment based upon the six-year statute of repose found in N.D.C.C. § 28-01-18(3), which provides in part:

28-01-18. Actions having two-year limitations. The following actions must be commenced within two years after the claim for relief has accrued:
3. An action for the recovery of damages resulting from malpractice; provided, however, that the limitation of an action against a physician or licensed hospital will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof unless discovery was prevented by the fraudulent conduct of the physician or licensed hospital.

[¶ 7] The "act or omission of alleged malpractice" relied upon by Hoffner is the May 28, 1992, letter from Dr. Johnson informing Monte his diabetes had been cured and he did not need to regularly monitor his blood sugar. Because Hoffner did not commence this action until 9½ years after the letter, the district court concluded the action was barred by N.D.C.C. § 28-01-18(3). The court rejected Hoffner's argument that the six-year statute of repose was unconstitutional. On appeal, Hoffner argues the six-year statute of repose violates the equal protection clause.


[¶ 8] All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, ¶ 17, 654 N.W.2d 426; Olson v. Bismarck Parks & Recreation Dist., 2002 ND 61, ¶ 11, 642 N.W.2d 864. Any doubt about a statute's constitutionality must, where possible, be resolved in favor of its validity. State v. Burr, 1999 ND 143, ¶ 9, 598 N.W.2d 147. Whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. Id.


[¶ 9] In reviewing the constitutionality of N.D.C.C. § 28-01-18(3), we must first resolve a dispute whether the six-year period under the statute is a statute of limitation or a statute of repose. We distinguished the two in Hanson v. Williams County, 389 N.W.2d 319, 321 (N.D.1986) (citations omitted):

Statutes of repose are different from statutes of limitation, although they have comparable effects. A statute of limitation bars a right of action unless it is filed within a specified period of time after an injury occurs. The purpose of a statute of limitation is to prevent "plaintiffs from sleeping on their legal rights to the detriment of defendants". Dickson, The Statute of Limitations in North Dakota's Products Liability Act: An Exercise in Futility?, 59 N.D. L.Rev. 551, 556 (1983); State v. Halverson, 69 N.D. 225, 226, 285 N.W. 292, 293 (1939). A statute of limitation period commences either upon the occurrence of an injury, or when the injury is discovered. A statute of limitation must allow a reasonable time after a cause of action arises for the filing of a lawsuit.
A statute of repose terminates any right of action after a specific time has elapsed, regardless of whether or not there has as yet been an injury. A statute of repose period begins to run from the occurrence of some event other than the event of an injury that gives rise to a cause of action and, therefore, bars a cause of action before the injury occurs. A person injured after the statutory period of repose is left without a remedy for the injury.

[¶ 10] The first portion of N.D.C.C. § 28-01-18(3) is a statute of limitation, providing that an action for malpractice must be commenced within two years. The two-year limitation period for malpractice actions is subject to the discovery rule, and the two years 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. Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 12, 599 N.W.2d 253; Zettel v. Licht, 518 N.W.2d 214, 215 (N.D.1994).

[¶ 11] The second part of the statute provides that, in medical malpractice cases only, no cause of action may be brought after six years from the act or omission of alleged malpractice. This part of the statute is a statute of repose. It does not commence from the time of injury, but from the date of the alleged negligent act. Although we have recognized that a medical malpractice action will generally accrue on the date of the alleged negligent act or omission, see Schanilec, 1999 ND 165, ¶ 11, 599 N.W.2d 253, that is not always the case. The occurrence of the negligent act and the injury to the plaintiff will not always be concurrent, and in such cases the cause of action does not accrue until the injury has occurred and manifested itself. This case is just such an example. The gravamen of Hoffner's argument is that Johnson misdiagnosed Monte's diabetes and told him he did not need to monitor his blood sugar in the future. It is unknown whether the "injury" to Monte occurred one week, one year, or more than six years after Johnson's letter, because we do not know when regular blood sugar monitoring would have indicated Monte needed to go back on insulin or have other treatment. Monte certainly could not have brought a medical malpractice action immediately after Johnson's letter, because at that point he had not suffered a compensable injury and damages caused by the alleged negligence.

[¶ 12] Courts in other jurisdictions construing similar statutes have held that the second portion of the statute, barring an action after a set period of years from the alleged negligent act or omission, constitutes a statute of repose. See, e.g., Siler v....

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