Ness v. St. Aloisius Hospital, 9821-A

• Decision Date: 29 January 1981
• Docket Number: No. 9821-A,9821-A
• Citation: 301 N.W.2d 647
• Parties: Marva D. NESS, individually and as parent and next friend of Leann Marie Ness, Andrew Philip Ness and William Ryann Ness, minor children, and the North Dakota Workmen's Compensation Bureau, Plaintiffs/Appellants, v. ST. ALOISIUS HOSPITAL, a corporation, Sister Corinne Yepson, Dr. L. E. Boyum and Dr. R. Pierce, Defendants/Appellees. Civ.
• Court: North Dakota Supreme Court

Page 647

301 N.W.2d 647

Marva D. NESS, individually and as parent and next friend of Leann Marie Ness, Andrew Philip Ness and William Ryann Ness minor children, and the North Dakota Workmen's Compensation Bureau, Plaintiffs/Appellants, v. ST. ALOISIUS HOSPITAL, a corporation, Sister Corinne Yepson Dr. L. E. Boyum and Dr. R. Pierce, Defendants/Appellees.

Civ. No. 9821-A.

Supreme Court of North Dakota.

Jan. 29, 1981.

As Amended April 15, 1981.

Wheeler, Wolf, Wefald, Peterson & McDonald, Bismarck, for plaintiffs and appellants; argued by David L. Peterson and Albert A. Wolf, Bismarck.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendants and appellees St. Aloisius Hospital and Sister Corinne Yepson; argued by H. Patrick Weir, Fargo.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendant and appellee Dr. L. E. Boyum; argued by William A. Strutz, Bismarck.

Zuger & Bucklin, Bismarck, for defendant and appellee Dr. R. Pierce; argued by William P. Zuger, Bismarck.

PAULSON, Justice.

Marva D. Ness ("Mrs. Ness") and the North Dakota Workmen's Compensation Bureau (the "Bureau") appeal from a summary judgment of dismissal of the complaint entered by the District Court of Wells County on June 19, 1980, because the district court determined that Mrs. Ness's action against the defendants and appellees St. Aloisius Hospital ("the Hospital"), Sister Corinne Yepson ("Sister Corinne"), Dr. L. E. Boyum ("Dr. Boyum"), and Dr. Robert B. Pierce ("Dr. Pierce") was barred by the statute of limitations under § 28-01-18(4) of the North Dakota Century Code. We affirm.

Mrs. Ness is the widow of Leroy A. Ness, who was admitted on August 16, 1977, to St. Aloisius Hospital in Harvey for surgery. Sister Corinne, a nurse-anesthetist employed by the Hospital, and Drs. Boyum and Pierce were preparing Mr. Ness for the surgery when difficulties ensued in the administration of anesthesia. Leroy A. Ness died on August 18, 1977, and the autopsy report indicated that he died from cerebral anoxia. The autopsy results were received by the Bureau on September 8, 1977. On December 9, 1977, the Bureau sent a letter to Mrs. Ness which indicated that Mrs. Ness had a legal right to sue certain parties if they were responsible for the death of Mr. Ness. In November of 1979 the Bureau, pursuant to § 65-01-09, N.D.C.C., contacted an attorney and requested that he commence an action for medical malpractice against the Hospital, Sister Corinne, Dr. Boyum, and Dr. Pierce.

On November 19, 1979, the attorney for Mrs. Ness, the surviving children of Leroy A. Ness, and the Bureau made an application for the establishment of a medical malpractice review panel under the provisions of Chapter 32-29.1, N.D.C.C., and served the application on all of the defendants except Dr. Pierce. The district court judge to whom the application for the panel was submitted advised that he considered the medical review panel statute unconstitutional and he did not convene a medical review panel. Mrs. Ness initiated this action on December 14, 1979, by issuing a summons and complaint which charged the defendants and appellees with negligence in their care and treatment of Leroy A. Ness. Service of the summons and complaint was made on Dr. Boyum on January 3, 1980, Dr. Pierce on February 9, 1980, the Hospital on February 25, 1980, and Sister Corinne on February 27, 1980. Dr. Pierce submitted his answer to the allegations made in Mrs. Ness's complaint on February 21, 1980. In his answer, Dr. Pierce alleged that Mrs. Ness's action was barred by the statute of limitations applicable to wrongful death actions under § 28-01-18, N.D.C.C. On January 30, 1980, the Hospital submitted its answer which raised as an affirmative defense the statute of limitations. The attorney for Sister Corinne stipulated that the answer interposed on behalf of the Hospital also applied to Sister Corinne. Dr. Boyum also asserted in his answer that Mrs. Ness's action was barred by the statute of limitations.

On March 10, 1980, the North Dakota Attorney General's office notified the parties that a medical review panel must be established for Mrs. Ness's claim. On April 27, 1980, Mrs. Ness submitted a motion to strike the allegations of the statute of limitations' bar to Mrs. Ness's action found in the answers of Drs. Pierce and Boyum, and the affirmative defense contained in the answer of the Hospital and adopted by stipulation as the answer of Sister Corinne. The motion was heard on May 16, 1980; and on June 19, 1980, the district court denied the motion to strike and ruled that § 28-01-18(4), N.D.C.C., was an effective bar to all claims made by Mrs. Ness against the defendants and appellees. The trial court also ruled that the claims of the surviving children of Leroy A. Ness were not barred by the statute of limitations. On August 27, 1980, Mrs. Ness and the Bureau appealed from the summary judgment of dismissal issued by the district court. The Bureau has transferred the action to a different attorney and Mrs. Ness has indicated that she has retained the attorney who initiated the action as her attorney.

Three issues are presented for our consideration. The issues are as follows:

1. Whether or not the Workmen's Compensation Bureau has standing to appeal the district court's ruling in light of the fact that Mrs. Ness has not agreed to be represented by a different attorney.

2. Whether or not the medical review panel procedure authorized by Chapter 32-29.1, N.D.C.C. is unconstitutional.

3. Whether or not the district court committed error when it issued the summary judgment of dismissal of the action of Mrs. Ness and the Bureau.

I

The first issue concerns whether or not the Bureau has standing to appeal the district court's ruling in light of the fact that Mrs. Ness has not agreed to be represented by the attorney who now represents the Bureau. Dr. Boyum contends that Mrs. Ness has not appealed from the district court's ruling and that the Bureau is solely responsible for the appeal. Under § 65-01-09, N.D.C.C., the Bureau may bring an action in its own name and as trustee for the injured employee or his dependents and the Bureau retains its subrogation interest. The Bureau's right to bring the action still exists if the injured employee or his dependents do not institute suit within sixty days after the date of the injury, and the Bureau may exercise that right within the applicable statute of limitations. Dr. Boyum contends that the Bureau has not met this requirement because it merely informed Mrs. Ness that a cause of action might exist and did not institute the action on its own accord. We disagree with Dr. Boyum's contention because the action was instituted on behalf of both Mrs. Ness and the Bureau, after the sixty-day period had run, by an attorney initially chosen by the Bureau and later chosen by Mrs. Ness to represent the parties. Thus, the Bureau and Mrs. Ness had mutual rights to institute the action after the initial sixty-day period had transpired and the Bureau has standing to pursue this appeal. The notice of appeal specifies that Mrs. Ness and the Bureau have appealed from the district court's decision; therefore, we will assume that both Mrs. Ness and the Bureau are parties to this appeal.

II

The second issue raised by the parties concerns whether or not the medical review panel procedure authorized by Chapter 32-29.1, N.D.C.C., is unconstitutional. Section 32-29.1-01, N.D.C.C., provides that no action against a health care provider based upon alleged professional negligence shall be commenced in any court in this State until the claimant files a certificate of review with the court. Although a certificate of review was filed in this case, the district court judge to whom the application was submitted advised that the provisions of Chapter 32-29.1 were unconstitutional and no medical review panel was convened. Our decisions in Boedecker v. St. Alexius Hospital, 298 N.W.2d 372 (N.D.1980); and State ex rel. Olson v. Graff, 287 N.W.2d 87 (N.D.1979), reveal that this issue is not properly presented for our review in the instant case. The district court ruled, on July 7, 1980, that Chapter 32-29.1, N.D.C.C., was unconstitutional; however, the defendants either agreed that such chapter was unconstitutional, or they did not oppose the motion to have the statute declared unconstitutional. No appeal could have been taken from the July 7, 1980, decision of the district court in this case, because the decision was not appealable.

As we noted in State ex rel. Olson v. Graff, supra, the parties to a medical malpractice action have no power to bypass the panel by simply agreeing to go directly into district court. Section 32-29.1-01, N.D.C.C. requires that a certificate of review must be filed by a claimant before an action based upon professional negligence may be commenced in any court in this State. This requirement is a necessary incident to the district court's exercise of subject matter jurisdiction under Article IV, § 92 of the North Dakota Constitution. Because the provisions of Chapter 32-29.1, N.D.C.C., were not complied with by the district court, subject matter jurisdiction in the district court with reference to this particular issue does not exist. Subject matter jurisdiction cannot be waived. Rule 12(h) of the North Dakota Rules of Civil Procedure. Consequently, our review of the issue is foreclosed because the proper procedure by which to initiate actions based upon professional negligence has not been met. The parties have urged this court to exercise original jurisdiction over this matter pursuant to Article IV, § 86 of the North Dakota Constitution; however, the parties have not delineated reasons for the exercise of original jurisdiction by this court. Our authority to exercise original jurisdiction is discretionary. The parties have not sufficiently specified the reasons for the exercise of original jurisdiction, and the procedural requirements for the...