Schanilec v. Grand Forks Clinic, Ltd.

• Decision Date: 25 August 1999
• Docket Number: No. 980341.,980341.
• Citation: 1999 ND 165,599 N.W.2d 253
• Parties: John SCHANILEC, Plaintiff and Appellant, v. GRAND FORKS CLINIC, LTD., Defendant and Appellee.
• Court: North Dakota Supreme Court

599 N.W.2d 253

1999 ND 165

John SCHANILEC, Plaintiff and Appellant, v. GRAND FORKS CLINIC, LTD., Defendant and Appellee.

No. 980341.

Supreme Court of North Dakota.

August 25, 1999.

Rehearing Denied September 22, 1999.

Shirley A. Dvorak of Moosbrugger, Dvorak & Carter, Grand Forks, for plaintiff and appellant. H. Patrick Weir (argued) and Sidney J. Spaeth of Vogel, Weir, Bye, Hunke & McCormick, Ltd., Fargo, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] John Schanilec appealed from the memorandum decision and order granting Grand Forks Clinic summary judgment in his medical malpractice suit. Because Schanilec was on notice of his potential claim more than two years before he filed suit, the case was barred by the statute of limitations in medical malpractice cases and summary judgment was appropriate. We affirm.

I

[¶ 2] Schanilec was in a car accident on November 18, 1981. As a result of the accident, he was treated by Dr. John Lambie and others at the Grand Forks Clinic from November 24, 1981, to February 1994. He was being treated for back problems, which the doctors at the clinic had diagnosed as fibrositis, a muscular condition.

[¶ 3] Schanilec says he asked Dr. Lambie for a referral to an orthopedic surgeon, but when Dr. Lambie refused and referred him to a rheumatologist instead, he sought the assistance of Dr. A.J. Kotnik of Grafton. When Schanilec saw Dr. Kotnik on February 14, 1994, Kotnik referred him back to the Grand Forks Clinic, this time to Dr. Stuart Rice for a neurology evaluation of his back. An appointment was scheduled at the Grand Forks Clinic for May 10, 1994, but Schanilec arranged an earlier appointment at The Orthopaedic Clinic with Dr. John Zeller and did not show up for his May 10 appointment at the Grand Forks Clinic.

[¶ 4] On February 19, 1994, Schanilec met with Dr. Zeller, who referred him to Dr. Jerry Sampson at the Dakota Clinic in Fargo for a discogram. Schanilec concedes that in February of 1994, he learned he had, in fact, sustained a compression fracture of vertebrae in his lower back. He had previously been told he had a bulging disc in the same location, but the doctors at the Grand Forks Clinic diagnosed his problem as muscular rather than skeletal.

[¶ 5] On April 14, 1994, Dr. Francis Denis discussed the results of the discogram with Schanilec and explained that the discogram done above and below the L2-3 and L3-4 levels showed essentially the L1-2 level to be intact and the L4-5 level to produce some pain. "L" refers to the lumbar vertebrae in the lumbar region of the spinal column. Dr. Denis then advised Schanilec the reasonable course would be to proceed with a surgical fusion at disc L2 to L4, and explained the potential risks and the details of the surgery. The surgery, consisting of an anterior spinal fusion of L2-3 and L3-4, followed by a posterior spinal reconstruction of L2-3 and L3-4 and bone graft, was performed on Schanilec on May 17, 1994. During surgery, Dr. Denis found a large fragment of bone at Schanilec's spine. According to Dr. Denis, "[t]his was confirming the x-ray appearance, which was suggestive of a hyperextension injury at that level, back years ago."

[¶ 6] Schanilec began this action on March 25, 1996, alleging negligence by Grand Forks Clinic in: (1) the original diagnosis and failure to properly diagnose and treat; (2) failing to inform about the fractured vertebrae; and (3) refusing to refer him to another clinic or physician.

[¶ 7] The district court granted Grand Forks Clinic's motion for summary judgment because Schanilec's medical malpractice action was not begun within two years of discovery of the alleged malpractice, as required by N.D.C.C. § 28-01-18(3). The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 8] Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either litigant is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the results. Swenson v. Raumin, 1998 ND 150, ¶ 8, 583 N.W.2d 102 (citing Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 12, 576 N.W.2d 505). On appeal, this Court reviews the evidence in a light most favorable to the party opposing the summary judgment motion. Id. (citing Freed v. Unruh, 1998 ND 34, ¶ 6, 575 N.W.2d 433).

[¶ 9] In considering a motion for summary judgment, a court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from the evidence to determine whether summary judgment is appropriate. Id. at ¶ 9 (citing Matter of Estate of Otto, 494 N.W.2d 169, 171 (N.D.1992)). Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474-75 (N.D.1991). The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means, raising an issue of material fact, and must, if appropriate, draw the court's attention to relevant evidence in the record raising an issue of material fact. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994). Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Matter of Estate of Stanton, 472 N.W.2d 741, 746 (N.D.1991).

A

[¶ 10] Schanilec argues the district court erred in granting summary judgment, because his medical malpractice action was not barred by the two-year statute of 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. This limitation is subject to the provisions of section 28-01-25.

N.D.C.C. § 28-01-18(3).

[¶ 11] The statute is silent on when an action accrues, and consequently the determination of when an action accrues is an issue for the court. Baird v. American Medical Optics, 155 N.J. 54, 713 A.2d 1019, 1025 (1998). In the context of medical malpractice actions, a cause of action generally accrues on the date the alleged act or omission occurred. Id. To ameliorate the often harsh and unjust results of such a rigid rule, most courts have adopted the discovery rule. Id. The discovery rule is meant to balance the need for prompt assertion of claims against the policy favoring adjudication of claims on the merits and ensuring that a party with a valid claim will be given an opportunity to present it. Buck v. Miles, 89 Hawai`i 244, 971 P.2d 717, 722 (1999) (citation omitted).

[¶ 12] This Court has adopted the discovery rule in medical malpractice cases and held the two-year statute of limitations begins to run "when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant's possible negligence." Zettel v. Licht, 518 N.W.2d 214, 215 (N.D.1994) (citing Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133 (N.D.1990)); see also Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1968)

(first North Dakota case to adopt the discovery rule).

[¶ 13] This Court has held:

[T]he focus is upon whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists. It is not necessary that the plaintiff be subjectively convinced that he has been injured and that the injury was caused by the defendant's negligence.

Wheeler, 451 N.W.2d at 137 (quoting Wall v. Lewis, 393 N.W.2d 758, 761 (N.D.1986)). See also Buck, 971 P.2d at 722-23

(legal knowledge of defendant's negligence is not required); Baird, 713 A.2d at 1025 (discovery rule delays the accrual of the cause of action until "the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim"); Langner v. Simpson, 533 N.W.2d 511, 516-17 (Iowa 1995) (statute of limitations begins to run when plaintiff knew or through the use of reasonable diligence should have known of the injury); Sweeney v. Preston, 642 So.2d 332, 333-34 (Miss.1994) (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)) ("The focus is upon the time that the plaintiff discovers, or should have discovered, by the exercise of reasonable diligence, that he probably had an actionable injury."); Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 351 (Iowa 1987) (citation omitted) ("The statute begins to run when the person gains knowledge sufficient to put him on inquiry. On that date, [the person] is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation."); Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111, 449 N.E.2d 438, 443-44 (1983) (a cause of action accrues in a medical malpractice case and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury); Witherell v. Weimer, 85 Ill.2d 146, 52 Ill.Dec. 6, 421 N.E.2d 869, 874 (1981) (statute of limitations begins to run when a person knows or reasonably should know of the injury or knows or reasonably should know the injury was wrongfully...